long before but the effect upon him was not shown and a state of intoxication such as would entitle defendant to the benefit of the instruction cannot be presumed. Instructions must be applicable to the facts shown. (People v. Huntington, 138 Cal. 261.) Instruction 18 was designed to point out to the jury that at the time of the assault he must have "actually intended to kill". It was refused because elsewhere given. The court had very clearly shown that such intent was a necessary ingredient of the crime charged. The defendant was not prejudiced because refused in another form.

Instructions 27 and 28 were refused because elsewhere given. They related to the doctrine of reasonable doubt and to the presumption of innocence with which the law clothes every defendant. The instructions as asked were proper but their purport had already been given.

Instruction 30 (erroneously designated 29) was in accord with section 1847 of the Code of Civil Procedure, that a witness is presumed to speak the truth. Instruction 21 of those given by the court gave defendant the benefit of the rule laid down by the code.

Instruction 33 was refused because elsewhere given. It related to the impeachment of a witness by "contradictory evidence or by general reputation", etc. The court, in its charge, covered the point satisfactorily.

[5] Instruction 36 was a direction that when a juryman had reached the opinion from all the evidence that defendant had not been proven guilty beyond a reasonable doubt, such juryman should adhere to his opinion thus formed until convinced beyond a reasonable doubt that his opinion was wrong. It is claimed that such an instruction was given in People v. Murphy, 146 Cal. 502, and was approved and hence should have been given here. It would not have been error to give it but it does not follow that its refusal was prejudicial. It is, after all, but a concrete statement of a juror's duty which in other language was explained to the jury as appears in several instructions.

Instruction 37 (designated 36 in defendant's brief) was of the same tenor as 36 except that it told the jury that it was their duty "to talk over the case carefully and listen to one another's views with an honest desire to reach an agreement", but if they could not and any one of the number was of the opinion that defendant had not been proven guilty beyond a reasonable doubt, such juryman should adhere to his opinion until otherwise convinced beyond a reasonable doubt. Such an instruction, if given, would not be error but, in view of the very full instructions as to the duty of the jury and the repeated admonition that they must acquit the defendant unless proven guilty beyond a reasonable doubt, we find no prejudice in withholding this instruction from the jury.

The judgment and order are affirmed.

We concur:

HART, J.
BURNETT, J.

CHIPMAN, P. J.

Civil No. 1405. Second Appellate District. February 13, 1914. MARGARET LILLIE, Plaintiff and Respondent, v. WILLEDD ANDREWS, Defendant and Appellant.

[1] FRAUD-PROCUREMENT OF MONEY BY ATTORNEY-FALSE REPRESENTATIONS AS TO DISMISSAL OF ACTION-KNOWLEDGE OF FALSITYABSENCE OF FINDING SUPPORT OF JUDGMENT.-It is held in this action to recover a sum of money alleged to have been obtained by the defendant from the plaintiff by means of false and fraudulent representations as to the dismissal of a certain action for damages against the latter, wherein the former was attorney for the plaintiff in such action, that while, as shown by the findings, the defendant was not guilty of actual fraud, as defined by section 1572 of the Civil Code, he was guilty of constructive fraud in that, without fraudulent intent, he did by false representations mislead the plaintiff to her prejudice, and that the judgment was amply supported without any finding as to the allegation of the defendant's knowledge of the falsity of the representations.

[2] ID.-ID.-ACTION FOR RECOVERY OF MONEY ILLEGALITY OF CONTRACT-DEFENSE NOT MAINTAINABLE.-The defense that the agreement and stipulation made with the plaintiff for the dismissal of the action was an illegal and iniquitous contract, cannot be invoked.

Appeal from the Superior Court of Los Angeles County-N. P. Conrey, Judge.

For Appellant-Willedd Andrews, in propria persona.

For Respondent-A. C. Galloway.

Action to recover a sum of money alleged to have been obtained by defendant from plaintiff by means of false and fraudulent representations. Judgment went for plaintiff, from which

defendant appeals.

It appears from the findings that defendant, at the time he obtained the money, was attorney for Mrs. Collier who had instituted an action for damages against Margaret Lillie, plaintiff herein, for the alleged alienation of the affections of the former's husband, who was defendant in an action for divorce brought by his wife. On March 20, 1912, defendant, claiming he was authorized so to do, entered into an agreement with plaintiff for the compromise of the suit against her, in accordance with which she deposited with an escrow holder the sum of $1500, to be paid to defendant Andrews on April 12, 1912, and at the same time plaintiff and Andrews signed and left with the escrow-holder a stipulation wherein it was agreed that the action brought by Mrs. Collier against Mrs. Lillie, plaintiff herein, should be dismissed and that "Mrs. Lillie's name, nor herself in person," should not appear in the said divorce case "which is to be tried on the 11th day of April, 1912". As per stipulation, defendant, as attorney for Mrs. Collier, moved the court to dismiss the action against Mrs. Lillie, which motion was by the court granted on March 20, 1912. On April 8, 1912, Mrs. Collier, through attorneys substituted for defendant, applied to the court for an crder vacating and setting aside the order of dismissal, which application was granted. On April 9th defendant having theretofore directed the escrow-holder to pay to Mrs. Collier $900 of the $1500 so deposited with it by Mrs. Lillie, represented to the

latter that the application to have the order dismissing the action vacated and set aside had been by the court denied; whereupon plaintiff, believing and relying upon defendant's statement, instructed the escrow-holder to pay the sum so deposited with it to Andrews on his demand therefor. Whereupon Andrews demanded and received from the escrow-holder the balance of said sum so deposited with it over and above the $900 theretofore directed to be paid to Mrs. Collier, and on April 15th instructed the escrow-holder to return the $900 to Mrs. Lillie. Thereafter plaintiff made demand upon defendant that he repay to her the $600 thus obtained upon the false representation that the action had been dismissed, and upon his failure so to do brought suit.

[1] Respondent files no brief, which omission is perhaps due to the fact that appellant presents nothing possessing the slightest merit in support of his appeal. It was alleged in the complaint that defendant, at the time he made the false representations in reliance upon the truth of which plaintiff was induced to part with her money, knew or ought to have known the same to be false. Appellant complains that the court made no finding as to this allegation, Plaintiff's right to recover, however, did not depend upon the truth of the alleged fact that defendant knew the representations to be false. While, as shown by the findings, defendant was not guilty of actual fraud, as defined in section 1572 of the Civil Code, he was guilty of constructive fraud in that, without fraudulent intent, he did by false representations mislead plaintiff to her prejudice. (Sec. 1573, Civ. Code.) Omitting from the complaint all reference to actual fraud, the remain ing allegations thereof, found by the court to be true, are ample to support the judgment.

[2] Appellant's chief contention is that the agreement and stipulation made with plaintiff for the dismissal of the action was an illegal and iniquitous contract. Says defendant: "It is a maxim of law that no man shall be allowed to found any claim upon Lis own iniquity." To this, defendant, an attorney at law, should add: "No lawyer when sued for money alleged to have been obtained by him through fraudulent means should plead his own iniquity as a defense to such action." In support of his contention defendant cites the case of Chateau v. Singla, 114 Cal. 91, wherein it was held that the court should not lend its aid to an accounting of a partnership the purpose of which was to conduct a house of prostitution. While the principle contended for is well recognized, it is subject for regret that a member of the bar should find himself in a position to invoke the same in defense of an action. Suffice it to say that, since the ground for setting aside the order dismissing the action is not disclosed by the record, there is nothing showing the agreement to be of the character which appellant imputes to his act.

The appeal is wholly without merit, and the judgment is affirmed.

We concur:

CONREY, P. J.
JAMES, J.

SHAW, J.

Crim. No. 231. Third Appellate District. February 13, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOSEPH MUELLER, Defendant and Appellant.

[1] LOCAL OPTION LAW-UNLAWFUL SALE OF WINE WITHIN NOLICENSE TERRITORY-PLEADING-INFORMATION-STATEMENT OF ALCOHOLIC CONTENTS UNNECESSARY.-It is not necessary in an information charging the unlawful sale of wine within no-license territory to allege that the liquor which the defendant is accused of having sold contained one per cent, by volume, or more, of alcohol.

OF

[2] ID. DESIGNATION OF "ALCOHOLIC LIQUORS"-MEANING TERMS USED IN ACT.-The words "which contains one per cent., by volume, or more, of alcohol", as used in section 21 of the local option law providing that "the terms 'alcoholic liquors', as used in this act, shall include spirituous, vinous and malt liquors, and any other liquor or mixture which contains one per cent., by volume, or more, of alcohol, and which is not mixed with other drugs so as to prevent its use as a beverage", were not intended to refer to and qualify the phrase "spirituous, vinous or malt liquors", but their sole purpose was to prevent an evasion of the law by meeting or covering those cases where decoctions, to be used as beverages, might be composed of a variety of liquids, including, among others, the quantity of alcohol mentioned, but which could not properly, or strictly speaking, be classed among either "spirituous". "vinous" or "malt" liquors, within the meaning of those terms as colloqually understood and used in the statute.

[3] ID. UNLAWFUL SALE OF WINE-EVIDENCE-CHARACTER OF LIQUOR SOLD-TESTIMONY OF WITNESS OF EXPERIENCE AND OBSERVATION. It is not error in a prosecution for unlawfully selling wine within no-license territory to permit the city marshal who took the bottle from the possession of the person to whom it was sold, to testify that the liquor was wine, where it is first shown that the witness had tasted various alcoholic liquors and knew the difference between whiskey, wine and brandy.

[4] ID.-ID.-ID.-PERCENTAGE OF ALCOHOL IN WINE-COMPETENT EXPERT TESTIMONY.-A witness who for a period of twelve years had been a gauger and storekeeper for the United States government, and whose duty it was to make tests of the strength or percentage of alcohol in various kinds of liquors, is qualified to give testimony as to the percentage of alcohol contained in the wine referred to in the information.

[5] ID.-ID.-ID.-DEPOSITION OF WITNESS AT PRELIMINARY EXAMINATION INABILITY TO SECURE ATTENDANCE AT TRIAL-SUFFICIENT SHOWING OF DUE DILIGENCE.-The deposition of a witness taken at the preliminary examination of the defendant is properly allowed to be read at the trial, where it is shown that the sheriff had been given a subpoena for the witness several weeks before the date of the trial and that he had searched for and had been unable to find him, and that foreign subpoenas directed to the sheriffs of three of the neighboring counties had likewise been returned unserved.

[6] ID.-ID.-NO-LICENSE CHARACTER OF TERRITORY-ABSENCE OF TESTIMONY-INSTRUCTION NOT ERRONEOUS. It is not error to instruct the jury in such a prosecution that the city within which the wine was sold was within no-license territory, without any testimony that the electors of such city had voted upon and made the provisions of the local option act applicable thereto.

[7] ID. PRIMA FACIE EVIDENCE OF NO-LICENSE TERRITORY-CONSTRUCTION OF ACT.-Paragraph 2 of section 10 of the local option act merely declares that the record showing the number of votes in favor of establishing no-license territory shall constitute a prima facie showing of that fact, but nowhere does it in terms or by implication say that the fact must be shown, or that other known legal means of bringing it to the attention of the jury is to be excluded or not resorted to.

[8] ID.-EVIDENCE-ADOPTION OF LOCAL OPTION LAW-JUDICIAL NOTICE. Courts may take judicial notice of the fact that the local option law has been adopted by the electors of a certain territory. [9] ID.-APPEAL-INSTRUCTIONS-INSUFFICIENT RECORD REVIEW UNAUTHORIZED.-Proposed instructions not embraced in the record or otherwise certified as having been passed upon by the court are not reviewable, notwithstanding that they are set out in full in the brief of the appellant.

Appeal from the Superior Court of Tehama County-John F. Ellison, Judge.

For Appellant-James T. Matlock, Jr.

For Respondent-U. S. Webb, Attorney-General; J. Charles Jones, Deputy Attorney-General.

The defendant was convicted in the superior court of Tehama county of the unlawful sale of alcoholic liquors within the incorporated limits of the city of Red Bluff, the territorial boundaries of said municipality being, so the information charges, nolicense territory. He brings the case to this court on an appeal from the judgment and the order denying him a new trial, complaining that the court below erred in not sustaining the demurrer interposed by him to the information upon the ground that it fails to state facts constituting an offense under the statute, that his rights were prejudiced by certain rulings, whereby improper testimony was allowed to go to the jury, and by the action of the court in giving and refusing to give to the jury certain instructions.

The information upon which the defendant was tried and convicted is founded on section 13 of the local option law, passed by the legislature of 1911. (Stats. 1911, p. 599.) It charges that "the defendant, on or about the 25th day of February, 1913, at and in the county of Tehama, and state of California, did wilfully and unlawfully sell alcoholic liquor, to-wit: wine, to one Sam Stevens, within no-license territory, to-wit: in the city of Red Bluff, in said county, said wine not having been manufactured on the premises where the same was sold," etc.

Section 13 declares it to be unlawful "for any person, corporation, firm, association, or club, as principal, agent, employee, or otherwise, within the boundaries of any no-license territory, to sell, furnish, distribute or give away any alcoholic liquors, except as provided in section 16 hereof".

The exceptions provided in section 16 include the permission to serve intoxicating liquors in one's home to the members of his family or to his guests as an act of hospitality; the sale of such liquors by pharmacists for medicinal purposes; the use of wine in religious services, and the sale thereof by pharmacists for such use; the storage of such liquors, provided they are not distributed in no-license territory, and the keeping of such liquors on premises where manufactured, and the shipping of the same into territories where the liquor traffic is permitted by law to exist.

It is not claimed that the sale charged here comes within any of the exceptions above stated.