Cohn v. Blumenburg

San Fran. Dist Ct

Cohn v. Blumenburg

2 Cal. Dist. Ct. 135

DecidedFebruary 15, 1858

StatusPublished

This text of 2 Cal. Dist. Ct. 135 (Cohn v. Blumenburg) is published on Counsel Stack Legal Research, covering San Fransisco District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohn v. Blumenburg, 2 Cal. Dist. Ct. 135 (sfdistct 1858).

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Opinion

HageR, J.

— This is a demurrer upon the ground that the words charged do not accuse plaintiff of the crime of larceny. I think, however, the allegations in some of the counts are sufficient. Whether under our statute concerning crimes and punishments they do not amount to a charge of larceny, I deem it unnecessary to consider very fully. It is alleged that they were spoken with intent to cause it to be believed that plaintiff was guilty of the crime of larceny, and I think that this averment obviates the objection that they do not really make the charge. It is also to be observed that each count charges the speaking of the express words, “ He is a thief,” and whether, even [136]*136if unaccompanied by the allegation concerning the intent of the defendant at the time of the speaking, the subsequent portion of the charge so far modifies these words as to deprive them of the effect which they would receive if alone, may admit of question. However, in view of the averment with respect to the intent with which they were uttered, I think that some of the counts demurred to are sufficient. The complaint is very badly drawn' — containing eight separate counts where one would be sufficient, and covering some sixteen pages of paper instead of one or two, which would have been sufficient. One of the objects of the code is to relieve the parties and the courts from considering • such complaints and other pleadings as the old system required, and of which this may. be regarded as an example. The first and fifth counts each charge defendant with calling plaintiff “ a thief,” and this simple allegation, under our system, is all that is required in order to introduce the same, and as much proof as can be brought in under the eight counts m this complaint.

This fact also makes the question of the demurrer pretty much immaterial, for even if it were sustained, the first and fifth counts contain all that is necessary as a cause of action.

If the defendant had drawn his demurrer to each count separately, instead of to the six collectively, I would probably have sustained it as to most of the counts, but as it is, if any one count demurred to is good, the demurrer cannot be sustained. In the form in which it is drawn it must be sustained or overruled as an entirety.

Demurrer overruled, with leave to answer, &c,

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HageR, J.

— This is a demurrer upon the ground that the words charged do not accuse plaintiff of the crime of larceny. I think, however, the allegations in some of the counts are sufficient. Whether under our statute concerning crimes and punishments they do not amount to a charge of larceny, I deem it unnecessary to consider very fully. It is alleged that they were spoken with intent to cause it to be believed that plaintiff was guilty of the crime of larceny, and I think that this averment obviates the objection that they do not really make the charge. It is also to be observed that each count charges the speaking of the express words, “ He is a thief,” and whether, even [136]*136if unaccompanied by the allegation concerning the intent of the defendant at the time of the speaking, the subsequent portion of the charge so far modifies these words as to deprive them of the effect which they would receive if alone, may admit of question. However, in view of the averment with respect to the intent with which they were uttered, I think that some of the counts demurred to are sufficient. The complaint is very badly drawn' — containing eight separate counts where one would be sufficient, and covering some sixteen pages of paper instead of one or two, which would have been sufficient. One of the objects of the code is to relieve the parties and the courts from considering • such complaints and other pleadings as the old system required, and of which this may. be regarded as an example. The first and fifth counts each charge defendant with calling plaintiff “ a thief,” and this simple allegation, under our system, is all that is required in order to introduce the same, and as much proof as can be brought in under the eight counts m this complaint.

This fact also makes the question of the demurrer pretty much immaterial, for even if it were sustained, the first and fifth counts contain all that is necessary as a cause of action.

If the defendant had drawn his demurrer to each count separately, instead of to the six collectively, I would probably have sustained it as to most of the counts, but as it is, if any one count demurred to is good, the demurrer cannot be sustained. In the form in which it is drawn it must be sustained or overruled as an entirety.

Demurrer overruled, with leave to answer, &c,

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2 Cal. Dist. Ct. 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-v-blumenburg-sfdistct-1858.