1916, at the said county of San Bernardino, state of California, did willfully, unlawfully and feloniously, and by means of force and fear, rob, take, steal and carry away from the person, possession and immediate presence of Jacob Widener, and against the will and without the consent of the said Jacob Widener, . . . then and there the property of the said Jacob Widener," he could not be convicted of assault with intent to rob, since the information contained no appropriate allegations charging him with such offense. In our opinion, the contention is without merit. Section 1159 of the Penal Code provides: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." Robbery is defined by section 211 of the Penal Code as the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." In People v. Chavez, 103 Cal. 407, [37 Pac. 389], the court says: "It may be conceded that an assault with intent to commit rape, as well as a simple assault, are included in the offense here charged'; which was that of rape. There is evidence which clearly tends to prove that defendant was guilty as charged in the information, namely; that while Horgan, at the point of a loaded pistol, commanded those in the gambling-room to hold up their hands, and by means of such force and the fear resulting therefrom, he, the defendant, proceeded, against the will of Widener, to take money from his pockets. That it was done with a guilty intent, admits of no doubt. In order, however, to constitute robbery, the defendant must have obtained money from Widener. Upon this point the evidence is in conflict, and apparently the jury were not convinced beyond a reasonable doubt that he obtained any money in the search of Widener's pockets. Such act, assuming no property was obtained from him, while incomplete as a robbery, possessed all the elements of robbery other than the taking of money. The assault was made and made with the intent to rob. That it was not accomplished may be due to the fact that Widener possessed no money, or to other causes. While an assault with intent to commit a crime may constitute an attempt, the converse of the proposition is not true, since there may be an attempt to commit a crime, such as larceny, for instance, unaccompanied by an

assault. In robbery, however, there must be an assault, accompanied by an intent to rob, and the actual taking of the property by force and against the will of the one robbed; and since this is true, the lesser crime, namely, an assault with intent to commit robbery, lacking in the one element of the crime charged, is included in the offense for which defendant was prosecuted. Upon the record, which we have examined with some care, the jury might very well have acquitted the defendant; but since, on the other hand, there is evidence upon which they might have properly convicted him of the offense charged, this court cannot disturb the verdict rendered to the effect that he was guilty of an assault with intent to commit robbery.

The judgment and order are, therefore, affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2015. Second Appellate District.—November 17, 1916.] JOSEPH ROSE SILVA, JR., Respondent, v. AMELIA ROSE SILVA, Appellant.

DIVORCE DESERTION CONTINUANCE FOR ENTIRE YEAR NECESSARY. Separation by consent is not sufficient to constitute desertion, and where there has been desertion in fact it must continue for the entire period of a year in order to constitute a ground for divorce. ID. SEPARATION AGREEMENT-CONDONATION.-An agreement executed by a husband and wife eight days after the desertion of the former by the latter, by which they mutually agree to live separate and apart from each other, is in the nature of a condonation, and in effect the same as though defendant had returned to her home, and after the restoration of the marital relation for a time had again left with intent to desert plaintiff, the date of desertion being the last departure; and an action for divorce brought within a year from the latter date is premature.

ID.

- WHEN BINDING.

SEPARATION AGREEMENT A separation agreement in the absence of a claim that the signature of either party was obtained by fraud, duress, or undue influence, and no reformation being sought for mutual mistake, is binding, although one of the parties claims that she did not intend to sign a contract of separation, and did not understand its terms when she executed it, and that the other party did not understand its purport, and therefore there was no meeting of minds.

APPEAL from a judgment of the Superior Court of Ventura County, and from an order denying a new trial. Robert M. Clarke, Judge.

The facts are stated in the opinion of the court.

D. H. Laubersheimer, for Appellant.

C. F. Blackstock, for Respondent.

SHAW, J.-Plaintiff brought this action to obtain a decree of divorce upon the ground of desertion. Defendant answered, denying the alleged desertion, and as a further defense, and by way of recrimination, set forth a cause of action against plaintiff based upon his alleged willful neglect and extreme cruelty.

Upon trial of the action the court found the allegations of the complaint true, and that the matters affirmatively pleaded in defendant's answer as a bar to plaintiff's cause of action were untrue. An interlocutory decree for plaintiff followed. The appeal is prosecuted by defendant from an order of court denying her motion for a new trial.

Among other grounds upon which appellant asks for a reversal is the contention that the evidence is insufficient to support the finding to the effect that on October 15, 1911, defendant willfully and without cause deserted and abandoned plaintiff against his will and without his consent, and ever since said date has lived and still continues to live separate and apart from plaintiff, against his will and without his consent.

It may be conceded that the separation of defendant from plaintiff on October 15, 1911, was with the intent to desert him without just cause and against his consent. Such fact, however, does not entitle plaintiff to a decree of divorce, since as provided in section 107 of the Civil Code, the status existing at the time of the desertion must continue for a period of one whole year. Separation by consent is not sufficient to constitute desertion. (Civ. Code, sec. 99.) During the entire period the status must be without the consent of the deserted spouse. "It continues only so long as there is a want of consent to the separation on the part of the deserted party." (McMullin v. McMullin, 140 Cal. 112, [73 Pac. 808.] The complaint herein was filed on October 18, 1912, more

than one year after the date of the desertion, during the whole of which period defendant had separated herself from plaintiff. It appears, however, that on October 23, 1911, eight days after defendant's act of desertion, she and the plaintiff executed a written instrument in due form, whereby they mutually agreed to live separate and apart from each other. It thus appears that during a part of the time, dating from October 15, 1911, and ending October 18, 1912, at which time the complaint was filed, the separation was by mutual consent, as evidenced by this instrument in writing so executed by the parties. Such consent, however, as provided in section 101 of the Civil Code, is a revocable act, and if one of the parties afterward in good faith seeks a reconciliation and restoration which the other refuses, such refusal is desertion. There was evidence offered on the part of plaintiff which it is claimed tended to prove that on the date of the execution of the agreement to live separate and apart, plaintiff, in good faith, sought a reconciliation with defendant and asked her to go home with him. Upon this testimony, while conceding the execution of the agreement, respondent insists it was revoked on the same day it was executed. Assuming this to be true, nevertheless, there was a period of time between October 15, 1911, and October 18, 1912, when the separation was by virtue of said agreement and by and with the consent of plaintiff. According to our view, the execution of the instrument was in the nature of a condonation, and the effect of it was precisely the same as though defendant had returned to her home and after a restoration of the marital relation for a time, had again left with intent to desert plaintiff. The time of the desertion would date from the last departure, and not from the time when she first left. So in this case, the one year during which the desertion must continue must be deemed to have commenced at the time the plaintiff revoked the agreement under and by virtue of which the parties lived separate and apart, and not from October 15th, when defendant left him. In our opinion the action was prematurely brought, inasmuch as the desertion by defendant had not continued one year prior to the time when the complaint was filed on October 18, 1912.

Respondent insists that the formal written agreement, duly executed by the parties, should be deemed invalid as an agreement of separation, for the reason that defendant did not

intend to sign a contract of separation and did not understand its terms when she executed the same; and likewise insists that plaintiff did not understand its purport when he executed it, and therefore since the minds of the parties never met, the document constituted no valid contract between them. No claim is made that the signature of either party to the instrument was obtained by fraud, duress, or undue influence; nor is reformation thereof sought for mutual mistake. So far as appears from the record, they signed it freely and voluntarily, and it is unnecessary to cite authorities in support of the doctrine that under such circumstances the parties to an instrument must be deemed bound by the plain import of the language used.

For the reasons given, the order denying defendant's motion for a new trial is reversed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2009. Second Appellate District.-November 17, 1916.] CONSOLIDATED LUMBER COMPANY (a Corporation), Respondent, v. WILL L. FREW et al., Appellants.

PROMISSORY NOTE-SETTLEMENT OF CLAIM FOR LUMBER-SHORTAGE IN QUANTITY ESTOPPEL - BURDEN OF PROOF.-In an action on a promissory note where the evidence shows that the creditor agreed to accept payment of a certain percentage of a claim for lumber sold and to extend the time of payment on the balance for a year, holding a transfer of a lease as security in the meantime, in consideration of which liens for the claim were canceled, and thereafter the lease was reassigned to the debtor at its request and two promissory notes executed, one of which was paid when due, the latter being the one in suit, under the circumstances defendant, if not estopped to dispute the fact that all the lumber was delivered as claimed, at least had the burden of proving by satisfactory evidence that some part of it was not delivered.

ID.-EVIDENCE-ADMISSION OF EXHIBITS.-Where the record shows that certain exhibits "were introduced in evidence and marked for identification," it cannot be successfully contended that the exhibits were merely produced for identification.

ID. ORAL EVIDENCE-CONTRADICTION OF WRITING.-In an action on a promissory note given on a claim for lumber sold, evidence that