attainment of justice. We think this true for many reasons, for the showing was inherently weak. It appears, by other portions of the record, that the appellant had been a resident of the state of California for seven years immediately prior to the trial. By his own evidence, he had been afflicted with but one epileptic fit in this state; hence, the evidence of these witnesses as to epileptic fits could only refer to a time many years ago, when he was but a youth, and he appears to have practically outgrown his affliction as age came upon him. As to the remainder of the showing, wherein affiant "believes that said witnesses will testify that. . . . he is of unsound mind," we think the court was right in rejecting his belief upon the matter. Some thing more than his mere belief as to what the witnesses would testify to was demanded.

3. The appellant challenged the panel of trial jurors upon various grounds. The fact that the names of two of the jurors upon the panel were not found upon the assessment-roll for the preceding year does not invalidate the panel. That fact being brought to the attention of the court, they were excused for cause, and no possible harm could have resulted to appellant by the mistake of the board of supervisors in placing their names upon the list of jurors for the year. It is further insisted that no certified list of trial jurors, as provided in section 208 of the Code of Civil Procedure, was ever placed in the possession of the county clerk. It appears by the testimony of the clerk of the board of supervisors that three hundred trial jurors were regularly drawn under the order of the court to serve for the ensuing year; that these names were entered upon a piece of paper by the clerk of said board, and this paper placed in the possession of the county clerk, without the certificate contemplated by the statute, and from this paper the names were taken and placed in the trial jury box. These matters all came under the personal knowledge of the witness, and he further testified that he was then and there ready to attach to the list the certificate required.

The procedure here practiced is not a commendable one, and should never be resorted to. It might result in the total miscarriage of justice, but, in this case, we see nothing whatever infringing upon appellant's rights. There is no question but that the list of jurors, as drawn by the board of supervisors, was the same list that went into possession of the county clerk, and from which the names were taken and placed in the trial jury box. If there was the slightest doubt as to the identity of the list we would not hesitate a moment in ordering the entire panel set aside; but there is no such doubt. The county clerk and the clerk of the board of supervisors are the same. Hence, these facts were essentially within the knowledge of the official having possession of the uncertified list, and we see no reason why he could not at the trial have attached the certificate contemplated by the law to the list. In State v. Greenman, 23 Minn. 209, there appeared to be a doubt as to the identity of the list.

4. A special venire was challenged upon the ground that it was summoned by an elisor, to the exclusion of the sheriff and coroner. From extreme caution the district attorney made a showing which, in the opinion of the court, disqualified both of these officers, and for that reason the elisor was appointed. There is no error in this action of the court.

5. The appellant, after his arrest, was brought into the presence of the wounded man, and a conversation then occurred between the deceased and a witness as to the ownership of a certain purse found upon the appellant at the time of his arrest. This line of examination is claimed to be error, but we think it authorized under the law. The appellant was present at the time, in a position to hear and see all that occurred, and neither affirmed nor denied the statement of the deceased to the effect that the purse was his property. His conduct, under the circumstances, is a fact to which the jury were entitled. (People v. Mallon, 103 Cal. 513.) It might be further suggested, in answer to appellant's

claims that his evidence was all the evidence offered at the trial as to the ownership of the purse, that appellant's own admissions placed the possession of the purse in the deceased at the time he was shot.

6. We see nothing objectionable in the character of the cross-examination of the appellant, and the verdict of the jury is fully supported by the evidence. The theory of the prosecution pointed to a murder for the purpose of robbery. The theory of the defense outlined an accidental killing by defendant, while under the influence of liquor. These two theories were squarely and fairly presented to the jury, and, by the verdict, the jurors rejected appellant's defense as one not true, but manufactured for the occasion. This defense had nothing to support it save appellant's own testimony; this the jurors disbelieved, and the credibility of his evidence was a matter essentially resting with them.

7. We have carefully examined the law given by the court to the jury, and consider it a full and fair charge when considered in connection with the evidence. We see nothing in the remaining specifications and assignments of error demanding a reversal of the judgment and a new trial of the case.

For the foregoing reasons it is ordered that the judgment and order be affirmed.

MCFARLAND, J., HENSHAW, J., HARRISON, J., and Van FLEET, J., concurred.

[No. 21188. In Bank.-July 5, 1895.]

IN THE MATTER OF HORACE W. PHILBROOK.

DISBARMENT OF ATTORNEY-MOTION FOR NEW TRIAL-REHEARING.— Under the constitution of 1879 a petition for rehearing of a proceeding for disbarment is an appropriate remedy, and a motion for a new trial of the proceeding is not a proper remedy, and there cannot be a motion for a new trial after an application for a rehearing has been denied.

ID. INSUFFICIENT PROCEDURE-ABSENCE OF NOTICE-BILL OF EXCEPTIONS.-No motion for a new trial can be entertained where no notice of intention was given, as prescribed by the code, and no statement or bill of exceptions was prepared.

MOTION for a new trial of a proceeding for disbarment of Horace W. Philbrook as an attorney at law.

The facts are stated in the opinion of the court.

Horace W. Philbrook, in pro. per., for the motion.

R. Y. Hayne, contra.

The COURT.-After the decision made in this case on the 5th of January, 1895 (105 Cal. 471), the respondent filed a petition to vacate the decision and judgment and for a rehearing. Upon this an elaborate argument was made, and the petition was denied. It is insisted that respondent has still pending and undisposed of a motion for a new trial.

No notice of a motion for a new trial was given, other than in the petition referred to, in which it is said: "So far as this is a motion for a new trial it is submitted upon the minutes of the court."

Respondent cites two cases, decided under the former constitution of this state, in which it was held that the proper course to obtain a reconsideration of an original proceeding in this court is to move for a new trial. (People v. Coon, 25 Cal. 635; People v. Holloway, 41 Cal. 409.) Also Nevada Bank v. Steinmitz, 65 Cal. 219, which decision was made after the present constitution took effect.

But since those cases the question has been fully considered here, and the conclusion reached that a motion for a new trial is not the proper remedy in such a case. (In re Tyler, 71 Cal. 374; Grangers' Bank v. Superior Court, 101 Cal. 198.)

In the case of People v. Coon, supra, it is said that "the party aggrieved must pursue the course prescribed in the Practice Act in like cases arising in the district courts." Respondent has not pursued that mode. He did not give the notice of intention prescribed by the code, nor did he prepare a statement or bill of exceptions. And in this he was right. These things are not required here, for the record to be reviewed is the rec

ord of this court, and, therefore, a motion for a new trial and an application for a rehearing would present the same questions for consideration. And since, as said in Grangers' Bank v. Superior Court, supra, the constitution requires that a judgment in Department shall be final, unless ordered into Bank or a rehearing is granted within thirty days, and, since the constitution does not distinguish between a judgment in an original hearing and in an appealed case, it would seem to follow that a motion for a new trial, which might cause a delay beyond the thirty days, is not an appropriate remedy.

As it would serve no useful purpose, it would seem to follow either that the application for a rehearing could not be heard or a motion for a new trial would not lie. It would be preposterous to expect that a motion for a new trial would prevail, after an application for a rehearing had been denied, upon a consideration of the same points which are presented by the motion for a new trial.

The motion is denied.

HARRISON, J., did not participate.

[No. 19520. Department Two.-July 6, 1895.]

EDWARDS SIMONS ET AL., RESPONDENTS, v. E. C. WEBSTER ET AL., DEFENDANTS, G. G. GREEN, AP

PELLANT.

APPEAL REVIEW OF CONFLICTING EVIDENCE.-Where the evidence is substantially conflicting the determination of issues of fact by the trial court is final, and will not be disturbed upon appeal. MECHANIC'S LIEN-CLAIM OF PARTNERSHIP FOR MATERIALS FURNISHED RETIREMENT OF PARTNER-ASSIGNMENT OF LIEN.-Where a partnership makes a contract for materials used in the construction of a building it is immaterial to the right of the partnership to file a lien therefor, whether the contract was or was not completed prior to the retirement of one of the partners from the firm, and his sale to the other partners of his interest in the firm; and the right of the partnership to claim and file a lien for the materials is not destroyed by the extinguishment of one partner's general interest in the partnership, nor is such case within the rule that the right to create a lien cannot be assigned to a stranger to the transaction.