ever, how easy to have so provided. If such was their intention, they were very unfortunate in the use of terms. The only reasonable construction of the instrument, it seems to us, embodies the conclusion that the trustees would recognize Lynip as being entitled to the last payment rather than Pearson. This necessarily implied that there would be a last payment due. They guaranteed, in other words, that the money should be repaid to Lynip out of a certain fund, to wit: "the 25 per cent of the contract price of said building, held back until the completion of the building." There never was any such fund, since Pearson abandoned the contract and the contract price was exhausted in the completion of the building by the trustees. It is to be observed that the trustees did not guarantee that Pearson would complete the building or that the twenty-five per cent would be due him when the building was completed, but the guaranty was virtually that effect would be given to the assignment to which, it may be repeated, it was attached and to which it refers and of which it was made an inseparable part.

This assignment was not the original obligation of the trustees nor of Pearson, but was collateral as a form of security. The original obligation was in the form of a promissory note signed by Pearson alone, and to secure its payment he made the assignment and the defendants guaranteed that they would recognize its operation in the distribution of said twenty-five per cent fund.

It is true that this construction probably deprives said guaranty of any legal value. The trustees had already indorsed on said assignment their acceptance, and they were thereby obligated to pay said fund to Lynip, but whatever may be the effect of said guaranty, the guarantors have a right to stand upon its terms.

The fact is, apparently, that the trustees, as individuals, guaranteed that they, as trustees of the district, would recognize Pearson's assignment and pay the money to his assignee instead of to him. But there was no default on the part of the trustees. They were not called upon to pay the money since the obligation never matured. As far as the guaranty is concerned, the trustees as such were the principals and they as individuals were guarantors. There having been no default on the part of the principals, it would follow that the guarantors were exonerated from liability.

Several cases are cited by respondent in support of his contention, but it will be observed that therein the liability of the guarantors was not limited as in the case before us. Bagley v. Cohen, 121 Cal. 604, [53 Pac. 1117], may be taken as an example. The contract was: "On or before sixty days I, E. H. Gould, do hereby agree to pay to F. S. Bagley, or order, out of the profits realized by me from my business of packing raisins at Malaga, during the present season, the sum of three hundred and ten dollars in gold coin of the United States of America." Prior to the delivery of this contract, and as a part of the same transaction, the defendant subscribed the following guaranty, which was written beneath the contract: "I, E. A. Cohen, do hereby guarantee the payment of the foregoing note in accordance with the conditions thereof." Within ten days after the execution of the foregoing instrument Gould sold and conveyed all his right, title, and interest in and to his business of packing raisins at Malaga and thereby prevented himself from realizing any profits out of said business. It was properly said by the supreme court that: "The contract of the defendants being a part of the same transaction with the contract of Gould, the two instruments make but a single contract on their part. (Hazeltine v. Larco, 7 Cal. 32.) Their guaranty that Gould would perform his contract was an original undertaking by them, and their liability as guarantors is commensurate with that of Gould. (Civ. Code, sec. 2808.) Their promise that he would perform his contract 'in accordance with the conditions thereof' made them absolutely liable for his failure to perform it when he should be so liable. (Otis v. Haseltine, 27 Cal. 80.)" The defendants therein, as seen, guaranteed the performance of Gould's contract, and hence they were of course liable when he defaulted. The defendants here made no such guaranty of Pearson's performance, but guaranteed a payment in accordance with the terms of their contract with Pearson. The latter having defaulted, released them and also the guarantors.

We think the order and judgment should be reversed, and it is so ordered.

Chipman, P. J., and Hart, J., concurred.

[Crim. No. 578. First Appellate District.-December 14, 1915.]

THE PEOPLE, Appellant, v. ANTONIO CARIDIS, Respondent.

CRIMINAL LAW-GRAND LARCENY-LOTTERY TICKET INSUFFICIENCY OF INFORMATION. An information charging a defendant with the crime of grand larceny in stealing a lottery ticket fails to state a public offense, as such a ticket has no legitimate value except as the evidence of a debt due from an enterprise which is denounced by law and conducted in defiance thereof, and an allegation that the drawing had taken place prior to the alleged larceny and that the defendant had collected a large sum of money thereon, adds nothing to the value of the ticket.

ID.

ID.

SUBJECT MATTER OF LARCENY PROPERTY HAVING VALUE. — It is essential to the commission of the crime of larceny that the property alleged to have been stolen have some value-intrinsic or relative-which, where grand larceny is charged and the property was not taken from the person of another, must exceed the sum of fifty dollars.

- LARCENY OF WRITTEN INSTRUMENTS CONSTRUCTION OF SECTION 492, PENAL CODE.-Section 492 of the Penal Code, which fixes the value in cases of the larceny of written instruments by providing that "if the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen," contemplates and controls the value to be placed only upon written instruments which create some legal right and constitute a subsisting and enforceable evidence of a debt.

ID.-ILLEGAL CONTRACT.-An obligation which exists in defiance of a law which denounces it has, in the eye of the law, neither validity nor value.

ID.-LOTTERY TICKET-PETIT LARCENY.-A lottery ticket, considered as a mere piece of paper, possesses perhaps some slight intrinsic value, which, however small, is sufficient to make a wrongful taking of it petit larceny.

APPEAL from an order of the Superior Court of the City and County of San Francisco allowing a demurrer to the information. George H. Cabaniss, Judge.

The facts are stated in the opinion of the court.

U. S. Webb, Attorney-General, Frank L. Guerena, and John H. Riordan, Deputies Attorney-General, for Appellant.

M. L. Choynski, and Joseph T. O'Connor, for Respondent.

LENNON, P. J.-The defendant in this case was, by an information filed in the superior court of the city and county of San Francisco, charged with the crime of grand larceny, alleged to have been committed as follows:

"The said Antonio Caridis on the 29th day of July, A. D. 1914, at the said City and County of San Francisco, State of California, did then and there willfully, unlawfully and feloniously steal, take and carry away one lottery ticket of the Original Nacional Company, No. 16235, that theretofore and on the 27th day of July, 1914, the said ticket was, after a drawing held by said Original Nacional Company, and its officers, representatives and agents, declared by said Original Nacional Company and its officers, representatives and agents, to be one of the winning tickets of the said Original Nacional Company, and its officers, representatives and agents, after said drawing aforesaid, did become liable for and did promise to pay to the holder of said ticket the sum of twelve hundred and fifty ($1250.00) dollars in gold coin of the United States of America and did then and there promise to pay to the holder of said ticket the sum of twelve hundred and fifty ($1250.00) dollars in gold coin of the United States of America;

"That thereafter, and on the 30th day of July, 1914, the said Antonio Caridis did present said ticket to said Original Nacional Company and to its officers, representatives and agents, and did receive from said Original Nacional Company, and its officers, representatives and agents, the sum of twelve hundred and fifty ($1250) dollars in gold coin of the United States of America therefor;

"That at all of said times the said lottery ticket was the personal property of Jim Papas and was of the value of twelve hundred and fifty ($1250.00) dollars in gold coin of the United States of America."

A demurrer to the information was allowed upon the ground that the facts stated did not constitute a public offense, in the particular that it affirmatively appeared that the subject matter of the alleged larceny had no legitimate

value. The action was thereupon dismissed and the people have appealed from the order allowing the demurrer.

The ruling of the court below was correct. It is essential to the commission of the crime of larceny that the property alleged to have been stolen have some value-intrinsic or relative-which, where grand larceny is charged and the property was not taken from the person of another, must exceed the sum of fifty dollars. (Pen. Code, sec. 847; Payne v. People, 6 Johns. (N. Y.) 103; Culp v. State, 1 Port. (Ala.) 33, [26 Am. Dec. 357]; Wharton's Criminal Law, p. 1333.)

Evidently the information in the present case was framed to fit the requirements of section 492 of the Penal Code, which fixes the value in cases of the larceny of written instruments by providing that "If the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby and remaining unsatisfied, or which in any contingency might be collected thereon or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen." Clearly this section contemplates and controls the value to be placed only upon written instruments which create some legal right and constitute a subsisting and an enforceable evidence of a debt. (People v. Dadmun, 23 Cal. App. 293, [137 Pac. 1071]; State v. Campbell, 103 N. C. 344, [9 S. E. 410]; McCarty v. State, 1 Wash. 377, [22 Am. St. Rep. 152, 25 Pac. 299]; Wilson v. State, 1 Port. (Ala.) 118.)

The lottery ticket which was the subject matter of the larceny charged in the present case had no relative value save, as affirmatively alleged in the information, as the evidence of a debt due from an enterprise which was denounced by law and which apparently existed and was conducted by its promoters in defiance of the law. (Pen. Code, sec. 319 et seq.) It is a well-settled principle that an obligation which exists in defiance of a law which denounces it has, in the eye of the law, neither validity nor value. An instance of the application of this principle is to be found in the analogous case of Culp v. State, 1 Port. (Ala.) 33, [26 Am. Dec. 357], where the court held that an indictment charging the larceny of several "bills of credit of the United States Bank," which were alleged to be of the aggregate value of $310, could not be sustained because each of the bills was for a sum less than