justify him in believing that there was no risk so long as defendant had bonds capable of being turned into cash. The fact that defendant said he would send them to Chicago and that he would have the money in two or three weeks to take up the note does not conclusively show that the note was signed under a promise to do something relating to a future event. The jury were justified, from all the evidence before them, in finding that Giacomini's reliance, as a moving cause for signing the note, rested on the representation that defendant had these bonds in his possession. In the case here there was a false statement, as found by the jury, to which was added a false promise a false statement by defendant that he had the bonds, to which he added the false statement that he would have them cashed, a statement impossible of fulfillment because he had no bonds. Such a concurrent promise does not overcome the force of the false pretense. Wharton's Crim. Law, 11th ed., vol. 2, sec. 1438; State v. Briggs, 7 L. R. A. (N. S.) note at p. 278.

4. It is stated in defendant's brief that the jury returned a verdict in which it was stated that defendant was guilty but "did not make any statements to N. Giacomini with intent to defraud him", which the trial judge "without informing the defendant of its contents told the jury it could not do". There is nothing in the record to show that this occurred. The record shows that a regular verdict of guilty was found and the jury were polled as to whether such was their verdict and each answered in the affirmative. No objection was made by defendant at the time and when the record was made up and certified no suggestion was made of any other or different verdict having been returned. There is nothing before us which would warrant our considering the effect of this alleged first verdict.

5. It is urged that the court erred in admitting the certified copy of Compiled Statements of Domestic Corporations showing that, on November 30, 1912, the charter of the Bowman Pharmacy, the corporation above referred to, had been forfeited for nonpayment of a license tax; that this evidence was offered to show that the shares of the corporation were valueless and was error because "it bore directly upon the question of the intent of defendant in securing the complaining witness' signature to the promissory note he was afterwards compelled to pay". It is true that the forfeiture declared by the secretary of state, under the statute, did not have the effect to destroy the assets of the corporation or deprive the stockholders of their interest in such assets; it went no further than to prevent the corporation from transacting business in the state. The directors, however, still retained the power, as we understand the statute, to settle the affairs of the corporation. It seems to us that, conceding error, it was without prejudice for the reason that there is no evidence that the corporation owned the drug store theretofore carried on by defendant, or that it owned any property or that the shares had any value.

6. Witness Parsons, secretary of the corporation, was called by the prosecution and, over defendant's objection, was permitted to testify that, some time in June or July, 1912, defendant told

witness the corporation "had fallen through". The objection was that "it did not lie in the mouth of any person to dissolve a corporation", which could be accomplished only by methods pointed out by statute. Defendant made no explanation of what he meant by the rather vague expression "fallen through". For the reasons given respecting the certificate of the secretary of state, we cannot see that the evidence was prejudicial. If the stock had no value, a fact which if true must have been known to defendant, it is not apparent that offering it as security would go very far towards showing that he did not intend to cheat or defraud the person misled by him.

7. Error is claimed of the first instruction given by the court for the reason that it states that "any pretense sufficient to impose upon the person to whom it was made, if made with the intent to cheat or defraud him, if property is obtained thereby from such person, is sufficient". The point made is that it omits the essential element that the pretense must be false or faudulent. The first part of the instruction states "that every person who knowingly and designedly by any false or fraudulent representations or pretenses defrauds any person of property and thereby obtains possession of the property", etc. Reading the entire instruction, as we must to get its meaning, we discover no merit in the point.

8. The court gave the following instruction of which error is predicated: "You are instructed that an intention to defraud is inferable from all the facts of the case and need not be substantially proven." There is force in the criticism that "a fact in criminal law which is not substantially proven is not sufficiently proven. The testimony to prove this intention must be material and substantial and not slight". If the instruction stood alone and unaided as indicative of the meaning of the court, there might be ground for assuming that it misled the jury into the belief that any degree of proof, however slight, would be sufficient. When read in connection with the instruction which follows the otherwise misleading feature is removed: "The question of intent to cheat and defraud is one of fact for you to determine from all the evidence in the case. This intention need not be proven by direct and positive evidence, but it may be lawfully and properly inferred by you from all the facts and circumstances in evidence having reference to and bearing upon and tending to prove such intent, provided such evidence is sufficient to satisfy you of such intent beyond a reasonable doubt."

Full instructions were given upon the question of reasonable doubt; also as to all the elements entering into the alleged crime and the necessity for proof as to them beyond all reasonable doubt.

9. The court instructed the jury as follows: "You are instructed that it is not necessary that the prosecuting witness, N. Giacomini, should expressly testify that the false pretense induced him to act as he did. If you are fully satisfied beyond a reasonable doubt from the testimony of other witnesses in the case and from all the facts and circumstances in the case that

the pretense induced the prosecuting witness to part with his property to defendant, that is sufficient to that extent."

It is objected that this is an instruction on a question of fact. The prosecuting witness testified expressly that the false pretense induced him to act as he did. The instruction simply means that this fact was capable of proof by testimony of other witnesses and from all the facts and circumstances in the case, which, we think, might properly have been stated to the jury.

10. Error is predicated of the following instruction: "You are instructed that when the pretense made by the defendant is false, and known to be so by him, it is no defense that the defendant intended or expected to pay for the property obtained when he was able to do so; and it is no defense that defendant J. P. Bowman himself received no money personally from the promissory note that he obtained from N. Giacomini if you believe beyond a reasonable doubt that J. P. Bowman intended to and did defraud N. Giacomini of same by the use and means of the false pretense."

Defendant claims that the jury were told to disregard all testimony concerning the stock of the drug store and its offer by defendant to the prosecuting witness as security. We do not think that the jury could have understood from this instruction that they were to disregard any testimony. They were told many times in the course of the charge that they were to consider all the facts and circumstances. This instruction was designed to meet the phase of the case which showed that County Treasurer Rice received the money for the note and placed it in the county treasury. Whether this amount had been borrowed by defendant from county funds does not clearly appear, but whatever the reason for his turning the note over to Rice the court very properly told the jury that it was no defense that defendant did not personally receive the money.

11. Complaint is made of the following instruction: "You are instructed that deception deliberately practiced for the purpose of securing an unfair advantage of another is fraud. Property obtained by such practice is obtained by fraud. A person deprived of his property by such means is defrauded."

It will not, of course, he contended that this instruction answers the requirement of section 532 of the Penal Code. Other instructions, however, did this very fully. We can see no error in this instruction, nor prejudice if it was error.

[4] We may remark that defendant offered 16 carefully prepared instructions covering the case quite fully and presumably as favorable to defendant as counsel felt justified in asking. They were all given with the exception of an unimportant amendment to one. The instructions given at request of the people have been examined. We feel quite convinced that defendant's rights were in no degree prejudiced by any instructions given and that he had the benefit of full, clear and correct directions for their guidance.

[5] 12. In the course of his address to the jury the special prosecutor stated: "I know that J. P. Bowman is guilty of this

crime. I know that he has defrauded a brother Mason, done it fraudulently anad intentionally. And his brother Mason, N. Giacomini, has lost nineteen hundred dollars on this account." And again: "When a man breaks a law against his brother in the lodge-ah, gentlemen, does not that add something to it, too? Does not that add cruelty to crime?"

It is contended that this was misconduct prejudicial to defendant's rights. There were some other statements not mentioned in defendant's brief to which objection was made at the time. There was no evidence that defendant and Giacomini were brother Masons or belonged to the same lodge of any society. The remarks of the prosecuting attorney were unwarranteed and highly reprehensible. It does not appear that any one of the jurors belonged to a Masonic or any other lodge. In stating that he knew that the defendant was guilty, the prosecuting attorney said: "I want to say this, gentlemen, that according to this evidence, I know that J. P. Bowman is guilty," etc. We do not think this statement presents the question of misconduct in the form condemned by the supreme court in People v. Valliere, 127 Cal. 65, where the district attorney, in speaking of another theft, of which evidence was excluded, states what the supreme court considered "as in the nature of testimony". In view of the evidence in the case bearing upon defendant's guilt and after an examination of the entire record, we cannot say that this misconduct has brought about a miscarriage of justice. (Const., Art. VI., sec. 42.)

13. Complaint is made that the reporter at the trial, in transcribing her notes taken at the preliminary examination, changed them by substituting the word "on" for "in" so that the testimony would read "on a bank in Chicago", referring to defendant's representation at the time he obtained the note. The matter was gone into at the trial with a view to correct the testimony and have it go to the jury thus corrected. We do not think defendant's claim was sustained. At any rate, the court had the right to accept the reporter's explanation and other facts tending to sustain her statement that she made a mistake in her notes which she corrected when transcribing them and that there was no intention to change the testimony as given nor in fact any change.

The judgment and order are affirmed.

We concur:

HART, J.
BURNETT, I.

CHIPMAN, P. J.

Civil No. 1422. First Appellate District. March 24, 1914. NEAL PUBLISHING COMPANY (a Corporation), Petitioner and Respondent, v. JAMES ROLPH, Jr., as Mayor of the City and County of San Francisco, Respondent and Appellant.

[1] MUNICIPAL CORPORATIONS-CITY AND COUNTY OF SAN FRANCISCO CONTRACT FOR FURNISHING OF PRINTED BLANKS AND FORMS FOR DEPARTMENTS OF MUNICIPALITY-INSUFFICIENCY IN FORM-OMISSION

OF CHARTER PROVISION AS TO HOURS OF LABOR AND MINIMUM WAGES OF LABORERS-VOID CONTRACT-MANDAMUS.-A contract for the furnishing of certain supplies in the way of printed blanks and forms, for use in the several departments of the city government of the city and county of San Francisco, which does not contain the express provision as to hours of labor and as to the minimum wages of laborers required by the terms of article 2, chapter 3, section 1 of the charter of such city and county, is void, and mandamus will not lie to compel the mayor of such municipality to sign and execute such a contract.

[2] ID.-ID.-CONSTRUCTION OF CHARTER PROVISION-APPLICABILITY TO CONTRACTS.-Section 1 of chapter 3 of article 2 of the charter of the city and county of San Francisco, which provides that "every contract for work to be performed for the city and county must provide that in the performance of the contract eight hours be the maximum hours of labor on any calendar day, and that the minimum wages of laborers employed by the contractor in the execution of his work shall be three dollars per day", is not confined in its application to contracts for the doing of work of a lower class in point of art or skill than that required to be done in the execution of a contract for the furnishing of supplies in the way of printed forms and blanks for the various offices and departments of the municipality.

[3] ID.-ID.-OBJECT OF CHARTER PROVISION.-The purpose of such section of the charter is to place bidders for public work upon a plane of equality as to the cost of labor, and to insure to all workmen engaged in the making of a product for public use under contracts involving the creation of such product, a fixed schedule of working hours and fair wages.

Appeal from the Superior Court of the City and County of San Francisco J. M. Seawell, Judge.

For Appellant-Percy V. Long, City Attorney; J. F. English, Asst. City Attorney; Geo. B. Benham, of Counsel.

For Respondent-W. B. Kollmyer.

This is an appeal from a judgment directing that a writ of mandate issue on the application of the petitioner, commanding the appellant, as mayor of the city and county of San Francisco, to sign and execute a certain contract with the petitioner for the furnishing of certain supplies in the way of printed blanks and forms, for use in the several departments of the city government, which contract had theretofore been awarded to the petitioner as the successful bidder for such supplies.

The facts concerning the award of the contract for these supplies, and the subsequent refusal of the mayor to sign and execute such contract, with the reasons therefor, as presented to the lower court upon an agreed statement of facts, are substantially these: The board of supervisors of the city and county of San Francisco, acting in conformity with the charter provision, regularly advertised for bids for the furnishing and delivery of a required quantity of printed forms and blanks for the use of the various offices and departments of the municipality for the fiscal year 1913-14. The petitioner was the lowest bidder for a considerable portion of these printed forms and blanks. At the time of the bidding and award of the contract the petitioner was conducting a union printing office, and was entitled to use and affix to its work the label of the allied printing trades