of such inequalities as part of the work of paving; that the character of this work did not come within the meaning of the word "graded," as used in the second section of the act, and was used by the engineer only in the sense of being a necessary part of the work of paving, for which a separate estimate was not only unnecessary, but improper. The resolution directed the engineer to make plans, specifications, and estimates "of the cost and expense of paving with basalt blocks," and, the estimate not having included "grading," both the engineer, in making his report, and the council, in approving it, must have understood the grading as part of the paving, and within the ordinance upon the subject of paving. Dyer v. Chase, 52 Cal. 440, and Donnelly v. Howard, 60 Cal. 291, cited by appellants, are not in point. In Dyer v. Chase the resolution of intention was to curb and macadamize a street. The contract and assessment included macadamizing the sidewalk. And in Donnelly v. Howard a reference to the record shows that the assessment included "curbing," which was not included or referred to in the resolution of intention. It may be, as appellants contend, that the grading increased the bid for paving, but, as the paving could not be done without the prior preparation of the street, such preparation is properly included.

The contention that the "notice of street work" did not comply with the statute, in that the letters should have been "an inch in length along the line," instead of vertically, requires little notice. The object of the statute is to have the headline of the posted notices, consisting of the words, "Notice of Street Work," so prominent as to attract attention, and so distinct as to be easily read at a reasonable distance. A copy of the headline of the notice, as posted, is inserted in the transcript. The letters are more than an inch in length, vertically, and of reasonable proportion, and are sufficiently distinct. The sole purpose of the statutory provision having been fully accomplished, as well as literally complied with, a discussion of the question is unnecessary.

As to the point that it is not shown that more than one notice of "street work" was posted, the transcript contains the following: "The plaintiff thereupon produced two witnesses, who testified, in substance and effect, that the said notice was posted at the time and in the manner required by law, both as to the number of said notices, the place of posting, and the time during which the same remained posted." This condensed statement of the evidence upon this point, made by appellants in their statement on motion for a new trial, is, we think, conclusive that the law was complied with in that regard. At the least, it does not appear from the record that the requisite number of notices was not posted.

Appellants make the further point in their v.34P.no.6-41

brief that the resolution of intention was not sufficient, inasmuch as it referred to ordinances 239 and 334, instead of reciting the provisions of those ordinances, and cite in support of their contention Crosby v. Dowd, 61 Cal. 558, to the effect that a decree fore closing a mortgage must be, in itself, sufficient, without referring to other records. That case was, however, overruled in De Sepulveda v. Baugh, 74 Cal. 468; 16 Pac. Rep. 223; In re Madera Irrigation Dist., 92 Cal. 329, 28 Pac. Rep. 272, 675. The question here, however, is different. In Crosby ▼. Dowd the question was whether a decree was not void which purported to enforce a lien upon property not described in the decree itself, and which could only be identi fied, if at all, by a reference to conveyances on record. Here the reference is to ordinances showing the manner in which the work is to be done, and of which appellants were not only bound to take notice, but were con clusively presumed to have knowledge. Find ing no error in the record, we advise that the judgment and order appealed from be affirmed.

We concur: VANCLIEF, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion, it is ordered that the judgment and order appealed from be atfirmed.

(4 Cal. Unrep. 309)

Ex parte BELL. (Supreme Court of California. Oct. 18, 1893) CRIMINAL LAW-JURISDICTION OF SUPERIOR COURT.

Where a defendant is convicted in the superior court of petit larceny, on an information which charges him with grand larceny, he may be confined in the county jail under such conviction, though the superior court has no jurisdiction of petit larceny, since the charge of grand larceny gave, the court jurisdiction, and Pen. Code, § 1159, authorizes a conviction of petit larceny when grand larceny is charged. In bank.

Application by Charles Bell for a writ of habeas corpus, alleging that he was illegally imprisoned under a conviction of petit larceny. Denied.

P. E. & Robt. A. King, for petitioner.

PER CURIAM. The petitioner was ac cused by information of the crime of grand larceny, and, after a trial in the superior court, convicted of petit larceny. His imprisonment in the county jail upon that conviction is alleged to be unlawful, because the superior court has no jurisdiction of petit larceny. But the charge of grand larceny gave the superior court jurisdiction, and the statute authorizes a conviction of petit lar ceny when grand larceny is charged. Pen. Code, 1159. Writ denied.

(100 Cal. 150)

PEOPLE v. DEFOOR. (No. 20,963.) (Supreme Court of California. Oct. 19, 1893.) CRIMINAL LAW-FORMER JEOPARDY-CONVICTION OF LOWER OFFENSE-MERGER.

1. Pen. Code, § 1159, provides that defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged. Defendant was convicted of an assault under an information charging him with an assault with intent to kill. Held to bar a trial on an indictment for mayhem.

2. The doctrine of merger does not apply in such case, for a conviction of mayhem could not merge a prior conviction and judgment for the same assault; but, if the information for mayhem had been the only one filed, a conviction would have merged the lower included offense, of assault.

Commissioners' decision. Department 1. Appeal from superior court, Calaveras county; C. V. Gottschalk, Judge.

Jackson Defoor was convicted of mayhem, and appeals from the judgment, and from an order denying a new trial. Reversed.

Reddy & Solinsky, for appellant. W. H. H. Hart, Atty. Gen., for the People.

HAYNES, C. The defendant was found guilty by a jury, and sentenced by the court to seven years' imprisonment in the state prison, upon an information for mayhem committed upon one W. R. Jones on the 19th day of December, 1891. The defendant pleaded not guilty, and also pleaded that he had once been in jeopardy for the offense charged, and also a further plea that he had been convicted of the offense charged upon judgment of the superior court of the same county, of Calaveras. The appeal is from the judgment, and from an order denying his motion for a new trial. The bill of exceptions shows that on the 19th day of December, 1891, the complaining witness, Jones, was seated in Raggio's store; that the defendant came in, and, after addressing some abusive language to Jones, struck him upon the head with a whisky glass; that Jones got up, whereupon the two men seized each other, and, in the struggle that followed, fell upon the floor, each striking the other as opportunity offered; and that, during the struggle, Jones was bitten upon the thumb by the defendant. The fight lasted about a minute and a half or two minutes, when the parties were separated by others who were present. The bite caused an abrasion upon the thumb, between the first and second joints, about the size of the head of a lead pencil. The complaining witness, the same day, went to a physician, and had the wound upon his head dressed, but did not call the attention of the physician to the jury to his thumb. The following day he returned to the physician, complaining of pains in his thumb, and received treatment therefor, with a view to prevent blood poisoning.

The treatment seems not to have been successful, and a few days later it be

came necessary to amputate the thumb. Afterwards, on the 4th day of February, 1892, two informations were filed against the defendant,-the first charging him with an assault upon the prosecuting witness, Jones, with a glass tumbler, with intent to kill and murder said Jones; and the second, for mayhem. In June, 1892, the defendant was tried upon the first information, and convicted of an assault, and judgment was duly entered against him that he be imprisoned in the county jail of the county of Calaveras for the term of three months; and the defendant was then remanded to the custody of the sheriff under said judgment. This judgment was entered June 10, 1892, and the trial upon the charge of mayhem was immediately proceeded with. Upon the trial of the information for mayhem, the defendant offered in evidence the information for assault with intent to murder, together with all the proceedings thereunder, including the verdict of the jury in finding him guilty of assault, and the judgment of the court thereon, to which evidence the people, by the district attorney, interposed an objection which was sustained by the court, and the evidence excluded, and the jury were instructed by the court, upon each of these issues, to find for the people; to which rulings the defendant duly excepted.

No question is made as to the form or sufficiency of the pleas, nor as to the fact that there was but one conflict between the prosecuting witness and the defendant. The court erred in excluding the evidence offered by defendant in support of his pleas of former conviction and of once in jeopardy, and in instructing the jury to find those issues for the people. The constitution provides that "no person shall be twice put in jeopardy for the same offense." The question arising under this provision is, what facts shall be held to constitute "the same offense," in any given case? That there are cases where at the same time, and apparently by the same act, different and entirely distinct offenses may be committed, need not be disputed. But this is not one of them. It is assumed on the part of the people that evidence to support the information for mayhem would not prove an assault with intent to murder, and that that is the test by which the question at issue is to be determined. But in this counsel are mistaken. Section 1159, Pen. Code, is as follows: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." It was therefore entirely proper to charge the assault with intent to murder in a single count, and the effect of so pleading, the conviction being for assault only, is an acquittal of the higher offense; and a conviction of the lower gave the conviction precisely the same effect, for the purposes of a plea of former conviction, as though the information had

been for that offense only. The information för mayhem does not, in terms, charge an assault, and it is not necessary under section 1159, Pen. Code, that it should. Nevertheless, an assault by the defendant upon the prosecuting witness is an essential element of the charge of mayhem; and, under the common-law system of pleading, it was always alleged that the defendant, "intending to maim," etc., "with force and arms did make an assault upon," etc., and then alleged facts showing the accomplishment of the higher offense. See Whart. Prec. p. 192. It is clear, therefore, that under section 1159, Pen. Code, above cited, the defendant might have been convicted of an attempt to maim, or of an assault only; and, if of an assault, there would have been two convictions for precisely the same offense. Nor does it make any difference that the conviction was for the higher offense, of mayhem, since that offense could not be proved without proving the assault, for which he had already been convicted. The doctrine of merger, to which great importance is given in many of the cases, cannot aid the respondent. If the information for mayhem had been the only one filed, the conviction would have merged the lower included offense, of an assault, but the conviction of mayhem could not merge a prior conviction and judgment for the same assault.

The circumstances under which courts have been called upon to determine what facts constitute the same offense have been so different and numerous that the authorities upon this subject are seriously conflicting, so far as the general question is concerned. I think, however, the views I have endeavored to express are amply sustained by the great weight of authority. In Bishop's New Criminal Law, (section 1058, subd. 3,) the learned author says: "A man convicted of an assault cannot afterwards be prosecuted for the battery in which it terminated, because, said Totten, J., 'the one is a necessary part of the other; and, if he be now punished for the battery, he will thereby be twice punished for the assault.' State v. Chaffin, 2 Swan, 493. And by the general and better doctrine a conviction or acquittal of a common assault will bar proceedings for an assault with intent to do great bodily harm, and other assaults aggravated in like manner." The only established exception to the foregoing proposition is where death subsequently occurs as a result of the assault, where it has been held that there may be a prosecution for the homicide, notwithstanding the previous conviction for the assault and battery. The same learned author above cited, in section 1051 of his work on Criminal Law, further says: "If the two indictments set out like offenses, and relate to one transaction, yet if one contains more of criminal charge than the other, but upon it there could be conviction for what is embraced in the other, the offenses, though of different

names, are, within our constitutional guaranty, the same." And in the following section the test is declared to be "whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction. When there could, the second cannot be maintained. When there could not, it can be." The case of People v. Majors, 65 Cal. 138, 3 Pac. Rep. 597, cited by respondent, is not in point. There two men were murdered at the same time, and by the same act. The defendant, having been convicted of the murder of one, to an indictment for the murder of the other pleaded a former conviction of the same offense. This court properly held that the murder of different persons, though by the same act, constituted different offenses, and that a conviction for one could not be pleaded in bar of the other. In People v. Stephens, 79 Cal. 428, 21 Pac. Rep. 856, the prosecution was for libel. The court said: "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 instances. 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 wrong, slander, and libel is a wrongful publication of language.' Townsh. Sland. & L. 121." So, in the case at bar, the assault is the essential element in both the alleged offenses. See, also, cases cited by the court on pages 430, 431. And on page 432, 79 Cal., and page 457, 21 Pac. Rep., in the same case. the court, quoting from State v. Smith, 43 Vt. 324, said: "There is considerable conflict in the authorities upon this subject, but we think the rule is now well settled that where one offense is a necessary element in. and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other." In Wilcox v. State, 6 Lea, 571, it was held a conviction of robbery is a bar to a subsequent indictment, founded on the same transaction, for assault with intent to murder. The court said: "The assault or violence in the robbery case, being an essential element or ingredient of, and constituting an important and material part of, that offense, as it does in the offense of assault with intent to commit murder, and having been once punished in the robbery case as a material part thereof, it cannot be again punished, as it would be if the judgment below were allowed to stand." In the same case, the court further said: "It was for the assault at the time of the robbery that the conviction was had in

dered at defendant's instance and request. The court found that, in a former action brought by plaintiff against defendant, it was adjudged that plaintiff did not render to defendant, at the latter's instance or request, the services alleged in the complaint in that action, and that defendant was not indebted to plaintiff therefor; that the services mentioned in the complaint herein are the same services alleged in the complaint in the former action. The judgment in the former action was held to be a bar to plaintiff's cause of action set up herein, and judgment was entered for defendant. From this judgment, and an order denying his motion for a new trial, plaintiff has appealed.

Appellant contends that the complaint in the former action was upon an account stated, or upon a new contract, by the terms of which the defendant agreed to pay, and plaintiff agreed to accept, $1,000, in payment of the services alleged to have been rendered. The allegations of that complaint were substantially as follows: Defendant employed plaintiff to find a party who would take a lease of certain premises for a term of years, and promised to pay him therefor, out of the first rents collected, 2 per cent. of the amount of rent to be paid during the term; that plaintiff found a party willing to take the premises, and on October 10, 1889, said party and defendant entered into a contract of lease for a term of 10 years at a rental of $625 per month, payable monthly in advance. from April 10, 1890; that plaintiff's compeusation under said agreement amounted to the sum of $1,875; "that thereafter there was an accounting by and between salù plaintiff and defendant for and about the compensation to be paid by said defendant to said plaintiff for said services, and, in consideration of immediate payment by said defendant to said plaintiff of the sum of one thousand dollars, it was then and there agreed by and between said plaintiff and said defendant, on or about the 15th day of October, in lieu of the agreement herein before mentioned, the said defendant should pay, and said plaintiff receive, in full satisfaction for said services, the sum of one thousand dollars cash, and defendant then and there paid to plaintiff the sum of one hundred dollars on account; but, though often requested, said defendant has failed and refused to pay the remainder of said sum, to wit, the sum of nine hundred dollars, which is now due and owing from defendant to plaintiff." The care with which the particulars of the original contract, the character of services to be performed, the exact amount to be paid therefor, and manner of payment,-and the result of plaintiff's efforts under it, are set forth in the complaint in the former action, indicates that the pleader had in view something more than merely a declaration on an account stated. The complaint was evidently framed for a double purpose, and as there was no demurrer for uncertainty, or on the

ground that two causes of action were improperly united, there is no doubt the plaintiff could have used it as a basis of recovery on either the original contract alleged, and services performed thereunder, or on the new agreement that the plaintiff should accept $1,000 in consideration of immediate payment. Having gone to trial upon the issues thus tendered by himself, and the court having determined all of them against him, he is now bound by the decision. He cannot litigate the same question twice. In the former action the court decided that the services alleged were performed at the request of, and as the agent of, the party to whom the premises were leased, and not at the request of defendant; and, although in that action an express promise to pay a certain amount was alleged, the finding is conclusive in this action on the same question that was involved, viz. were the services performed at the request or instance of defendant? The judgment and order are affirmed.

We concur: HARRISON, J.; GAROUTTE, J.

(100 Cal. 175)

BETHELL v. ROGERS. (No. 15,384.) (Supreme Court of California. Oct. 24, 1893.) APPEAL-PRACTICE TIME OF FILING TRANSCRIPT -COURT RULES.

Rule 2 of the supreme court, which requires the transcript to be filed within 40 days after taking an appeal, is not superseded, nor is the time of filing extended for 5 days, by rule 11, which allows the appellee 5 days in which to examine the transcript presented by appellant and to certify to its correctness.

Department 1. Appeal court, Contra Costa county.

from

superior

Action by F. C. Bethell against C. W. Rogers. Judgment for plaintiff. Defendant appeals from an order denying a new trial. Appeal dismissed.

A. D. Spivalo, for appellant. W. S. Tinning, for respondent.

HARRISON, J. Motion to dismiss the ap peal. Judgment was rendered in this case in favor of the plaintiff, June 24, 1890, and an order was afterwards made denying defendant's motion for a new trial. From this or. der the defendant appealed on the 29th of April, 1892. May 25, 1893, the respondent gave notice to the appellant of this motion to dismiss the appeal upon the ground that the appellant had failed to file the printed transcript of the record within the time prescribed by rule 2 of this court. At the time of giving the notice, the transcript on appeal had not been filed, and was not filed until June, 1893. It appears from the affidavits that in the latter part of June, 1892, Mr. Weller, at the request of the attorney for the appellant, went to the office of the attorney for the respondent in Martinez, and there met W. S. Wells, who