business outside the borders of no-license territory could, with impunity, and immunity from punishment carry on a mail order liquor traffic within such territory (Rose v. State, Georgia Court of Appeals, 62 S. E. 117), and thus impart to the act an effect which would make it practically prohibitory of prohibition rather than prohibitory of the liquor business. Besides, such a construction would have the effect of granting to persons licensed to conduct the liquor trade outside the limits of no-license territory privileges exercisable within such territory which cannot be enjoyed by persons residing or doing business therein-that is to say that, while persons engaged in the liquor business outside the boundaries of no-license territory could solicit orders and make agreements touching intoxicants, manufacturers of such liquors maintaining and carrying on their business as such within the limits thereof cannot legally do so, a discrimination which the legislature doubtless has the right to make as to the liquor traffic but which, from the manifestly absurd consequences which would follow therefrom, it cannot reasonably be supposed to have intended; for thereby the city embracing such territory or the county in which it is situated would not only be deprived of its revenues, but of the power of exercising that proper control of the traffic which results from the imposition of the license. (People v. Swenson, Michigan Supreme Court, 127 N. W. 302.)

[11] Counsel, however, perceive no difference between the act of soliciting orders by means of letters or circulars sent through the mail to particular individuals in no-license territory and the circulation in such territory of newspapers, containing among others relating to other matters, advertisements extolling the quality and giving the prices of certain brands of liquor. But there is an obvious distinction between the two propositions, and it lies in the fact that, in the one case, the minds of particular persons are directly addressed upon a single subject and their attention thus specially called to the subject matter of the letter or circular, while in the other no particular person is appealed to upon any one of the various matters which are usually referred to in or given publicity through the medium of the advertising columns of a newspaper of general circulation. "Solicit", according to Webster's dictionary, is "to apply to for obtaining something; to awake or excite to action; to arouse a desire in", etc., and it may apply to cases where one asks another for a bribe or asks another to commit bribery or larceny and other offenses. (Black's Law Dict., p. 1105.) It implies personal petition and Importunity addressed to a particular individual to do some particular thing, and it is unquestionably in this sense that the term is used in the statute. If our statute against bribery in terms, as in effect it does, had been made to say that a public officer who solicited a bribe for the performance of some act within his official duties, and the officer should, by letter, solicit the payment to him of a bribe, it would not for a moment be questioned that such act of the officer would constitute a solicitation of a bribe within the meaning of the law. So it is and must be true here. A letter or circular, such as the one involved

in this case, addressed to a particular person, and emphasizing in alluring terms the superior quality of certain commodities, giving the prices at which they may be purchased, and vigorously importuning the addressee to buy and use the same, can be no less a personal solicitation for orders for such commodities than would be the solicitation of a bribe through the medium of a letter or, indeed, than would be the case of like solicitation prosecuted in person by the party by whom such letter or circular is sent out. An advertisement can in no sense be held to be a personal petition or request addressed to any particular person. The ordinary advertisement so published has the effect only of directing attention, in a general way, to the matter advertised, and is, as before stated, addressed to the general public, wherever such newspaper is circulated.

But there is ample judicial authority for holding that a solicitation of orders by mail for the sale of liquors to be delivered in no-license units within which solicitation of such orders is in general terms forbidden by law is a violation of the legislative mandate.

In Rose v. State, supra, the question is elaborately and ably examined in a case calling for the construction of a section of the Penal Code of the state of Georgia which provided: "If any person shall sell, contract to sell, take orders for or solicit personally or by agent, the sale of spirituous, malt or intoxicating liquors in any county or town or municipal corporation or militia district or other place where the sale of such liquors is prohibited by law, high license or otherwise, he shall be guilty of a misdemeanor." The counties of the state of Georgia are given the authority by a general act of the state legislature to prohibit the traffic in intoxicating liquors within their respective jurisdictions. The defendants were accused of personally soliciting the sale of intoxicating liquors within Bartow county in said state, “said soliciting being made by and through the United States mail, by mailing letters to the citizens of Bartow county from the city of Chattanooga, Tenn., containing self-addressed envelopes, order blanks, and other printed and written matter soliciting the sale of said liquor, said letters having been mailed and delivered" to certain named citizens of said county. It was claimed in that case, as here, that the solicitation of orders for liquor by mail did not constitute the solicitation contemplated or intended by the code section, but that the section applied only to solicitations made by one in person, "and that for that reason the solicitation of sales, referred to, whether it be by the seller himself or by his agent, must be by personal visit to the locality where such sales are prohibited". In support of that contention, special emphasis was placed upon the language of the section, "solicit personally". The court rejected the construction thus given the section and the argument advanced in support of it, saying, inter alia: "When we consider that the intention of the act, to which we have already referred, was to make criminal the introduction of intoxicants from a county where the sale of such intoxicants was legal into a county where the sale was prohibited,

it is readily to be seen that, while the solicitation which was made penal could be a personal solicitation, it was none the less made a crime for any person, either himself or by an agent, in any way, to solicit the sale of intoxicating liquors where it was prohibited." Again the court said: "We have no difficulty, therefore, in holding that it was the intention of the legislature (in order to make the prohibition laws of those counties that might adopt them effective) to absolutely prohibit the encouragement of purchases of intoxicating liquors in counties which had prohibited the sale, by any kind or form of solicitation (italics mine), except that licensed sellers might solicit orders from licensed druggists and licensed physicians."

In Hayner v. State, 93 N. E. 900, the Ohio supreme court sustained a verdict whereby the defendant was convicted of the crime of soilciting orders within "dry" territory for intoxicating liquors, said soliciting having been done by mail, under circumstances precisely the same as those disclosed by the complaint in this case, the court, among other things, saying: "We assume that the act of soliciting may be done by letter as well as in person."

In Holmes v. State, 122 Pac. 345, the defendant had been convicted of the charge of soliciting orders for intoxicating liquors within a dry unit, under a statute of the state of Washington making such solicitation a misdemeanor. The soliciting was done, precisely as here, by means of a circular letter sent through the United States mail by the defendant from the city of Seattle, where the sale of intoxicating liquors was then permitted by law, to a citizen of the city of Everett, in said state, which was a unit in which the sale of such liquors was then unlawful. The supreme court of that state upheld the judgment following the verdict of conviction upon the authority, principally, of the case of Rose v. State, supra, of which it had this to say in its opinion in the Holmes case: "Upon every point discussed, we regard that opinion as logical, unanswerable, and well sustained by authority. Its reasoning and conclusions, which we approve and adopt, when applied to the facts in this case, not only support the proposition that appellant's act was an unlawful solicitation of orders for intoxicating liquors in a dry unit, but are also convincing to the effect that such unlawful act was committed in the city of Everett, where appellant's letter was received by Swalwell." (See also, U. S. v. Thayer, 209 U. S. 39,

52 L. Ed. 673; In re Palliser, 156 U. S. 266, 34 L. Ed. 514; Horner v. U. S., 143 U. S. 207, 36 L. Ed. 126; Burton v. U. S., 202 U. S. 344, 50 L. Ed. 1074; Danciger v. Stone, 187 Fed. 861.)

[12] As is shown by the above cited cases, and, indeed, as necessarily follows from the conclusion arrived at here with respect to the scope of the language, "solicit orders", as employed in the statute in question, the crime charged against the petitioner was committed upon the receipt of the circular letter in the city of Woodland by the party to whom it was addressed, and the venue of the offense is consequently in Yolo county, in which the city of Woodland is situated. (See cases above cited, particularly Thayer v. U. S.)

I have carefully examined the brief filed here by counsel amici curiae. It is unnecessary to review in detail the arguments and authorities presented therein. It is enough to say that most of the points made in said brief are in effect answered in the foregoing views of the vital questions submitted by this proceeding. It may be remarked, however, that many of the cases cited by counsel in the brief referred to have no application to the case at bar. The cases referred to have to do with legislation purporting to control, as a police regulation, businesses which are in themselves legitimate, and which, though subject to the police power, are essential to the well-being of society and which can neither be suppressed nor so regulated as that unjust, burdensome or discriminatory conditions may be imposed upon them or the right to conduct them. For instance, the slaughter house, the cemetery, and other like cases, cited by counsel as amici curiae, obviously deal with occupations in which people have the inherent right to engage, because they are, unlike the liquor traffic, necessary and useful; yet they are of a character that, unless managed in a proper way, they may become a source of great injury to the comfort and health of communities. Therefore, as stated, the state, in the exercise of its powers of police, may regulate the manner of their management so as to prevent, as far as possible, the injurious results to others which are known to come from the prosecution of such occupations; but, as declared, such regulations can neither be prohibitory nor discriminatory in their effect, as is true, in my opinion, as to legislation affecting the liquor traffic.

I think, for the reasons herein stated, that the respondents have jurisdiction of the proceeding of which complaint is here made, and the order to show cause is, therefore, discharged and the writ dismissed.

We concur:

HART, J.

BURNETT, J.

CHIPMAN, P. J.

Civil No. 1195. Third Appellate District. February 12, 1914. GOLDEN & COMPANY (a Corporation), Petitioner, v. THE JUSTICE'S COURT OF GUINDA TOWNSHIP, YOLO COUNTY, and J. H. NORTON, Justice of the Peace of said Township, Respondents.

Application for writ of prohibition prayed to be directed against the Justice's Court of Guinda Township, Yolo County, and J. H. Norton, Justice of the Peace, etc.

For Petitioner-Hoefler & Morris.

For Defendants and Respondents-A. G. Bailey, District Attorney; I. M. Golden, Amicus Curiae.

This is an application for a writ of prohibition to restrain the respondents from taking further steps in a certain proceeding, now pending before them, and which is based upon a complaint whereby the petitioner is charged with the violation of the

provisions of section 4 of ordinance No. 72 of the county of Yolo, passed by the board of supervisors of said county on the 5th day of September, 1911.

The purpose of said ordinance is the regulation of the business of selling intoxicating liquors in the said county of Yolo. Section 2a provides that ten licenses and no more shall be issued in Yolo county to carry on and conduct the liquor traffic, and then follows a designation of the towns and places wherein the right to carry on said business under the licenses mentioned, when the same are duly issued, may be exercised. No part of the territory in said county known as Guinda township, of which the respondents are the justice's court and the justice of the peace, is included among those in which licenses to conduct the liquor traffic may be issued under said ordinance.

Section 4 of said ordinance provides:

66

It shall be unlawful for any person, company, association or club, as principal, agent, employee, or otherwise, within the limits of the county of Yolo, to solicit orders, take orders or make agreements for the sale or delivery of alcoholic liquors."

The complaint filed against the petitioner with the respondents is made a part of the petition for the writ applied for here, and from said complaint it appears that the petitioner is charged with soliciting an order in said Guinda township for alcoholic liquors by means of a circular letter, sent through the U. S. mail to a resident of said township at his postoffice address therein. The circular letter, which is set out in said complaint, is substantially in the language of the letter involved in the case of Golden & Company (the petitioner here) v. The Justice's Court of Woodland Township, et al., (Civil No. 1194), this day decided.

Both cases were submitted to this court at the same time and upon the same oral arguments and briefs, both involving precisely the same legal questions. Therefore, upon the authority of the case of Golden & Company v. The Justice's Court of Woodland Township, et al., the relief applied for here must be denied and the alternative writ of prohibition accordingly discharged.

Such is the order.

We concur:

BURNETT, J.

CHIPMAN, P. J.

HART, J.

Crim. No. 210. Third Appellate District. February 12, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. J. WHITLOW, Defendant and Appellant.

[1] CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON WITH INTENT TO MURDER-EVIDENCE-PART OF CASE IN CHIEF-ADMISSION AS REBUTTAL-RULING NOT PREJUDICIAL.It is not prejudicial error in a prosecution for assault with a deadly weapon with intent to commit murder to permit the prosecution in rebuttal to introduce evidence which was properly part of the case in chief, where the same is material and relevant.