Miller v. Stewart

By the Court, Sanderson, C. J. This is an action brought to recover certain personal property described in the complaint, or its value in the event a delivery thereof cannot be had. The principal question involved in the case is, as to the bona fieles of certain transactions or sales on the part of the plaintiff and his brother and co-partner, alleged to be fraudulent as against the defendants, who were creditors of the film. Among other instructions given by the Court is the following, which was excepted to by the defendants, and is here assigned as error: “ The circumstances under which this sale of the interest in the property by the partner, D. C. Miller, to Henry Miller took place, have been detailed to you by the witness (Miller) himself ; and there is no sufficient evidence in the case from which you could infer generally that the transactions which took place about that time were fraudulent as to creditors. You do not know—it was not elicited by the counsel for either party—whether or not there was a fraudulent misappropriation of the funds raised about that time. Indeed, these circumstances have not so far been detailed to you as for you to find fraud in the transaction. I instruct you upon that point, merely as a matter of law.”

Section twenty-third of the Act concerning fraudulent conveyances and contracts (Wood’s Dig. 107) reads as follows: “ The question of fraudulent intent in all cases arising under the provisions of this Act shall be deemed a question of fact, and not of law” * * * . Whether the transactions in question were entered into by the Millers with intent to hinder, delay, or defraud their creditors, is a question which the statute leaves to the determination of the jury upon such evidence as may be presented for their consideration. The intent is expressly declared to be a question of fact, and must, there[505]fore, be for the jury, and not the Court. In the instruction above quoted, the Court, in effect, takes the question from the consideration of the jury, and assumes the decision thereof, notwithstanding the express prohibition of the statute. As a charge, it is also repugnant to the seventeenth section of Article VI of the Constitution, which provides “ Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.”

If there was no evidence whatever tending to support the allegation of fraudulent intent, we might disregard the error upon the ground that it is an error without prejudice; but there is some evidence in the record tending to establish the alleged fraud upon which the defendants were entitled to take the opinion of the jury. (Pico v. Stevens, 18 Cal. 376.) That there is such evidence, the language of the instruction itself implies. This disposes of the appeal, and makes it unnecessary to consider the remaining points made by counsel for the appellant.