The petition fails to show the ground on which petitioner "objected to and resisted said motion" made in the superior court to substitute a copy for the original complaint. All that appears in the minutes of the trial in the superior court is that "on said motion L. E. Fulwider was sworn and testified on behalf of defendant, and opposed said motion." The testimony of defendant's attorney is in the return, and relates only to what occurred in the justice's court. It appears from the return that after the motion was granted and the substituted complaint presented and filed, the cause was tried upon its merits, the "findings and judgment" reciting that plaintiff was represented by attorney and defendant also represented by attorney. The only objection made by defendant's attorney was to the motion, and after the court ruled thereon, defendant's attorney continued to appear for defendant at the trial on the merits making no objection to the jurisdiction of the court.

Where the appeal from a justice's court is upon questions of law and fact and the defendant seasonably challenges the jurisdiction of the court to try the action upon its merits,, by reason of the want of jurisdiction of the justice's court over the subject matter of the action appearing upon the face of the record. such defendant is entitled to an order dismissing the action for want of jurisdiction to try it upon its merits. (Bates v. Ferrier, 19 Cal. App. 79, [124 Pac. 889]; Bartnett v. Hull, 19 Cal. App. 91, [124 Pac. 885], and cases cited.)

If the appeal is taken "on questions of both law and fact," the "action must be tried anew in the superior court" (Code Civ. Proc., sec. 976); and the justice is required to transfer to the superior court certified copies of his docket and all the pleadings and papers, etc., filed in the cause. (Code Civ. Proc., sec. 977.) "On such appeal," said the supreme court in Maxson v. Superior Court of Madera Co., 124 Cal. 468, [57 Pac. 379], "therefore, the entire cause is transferred to the superior court, and thereafter the latter court has exclusive jurisdiction and its judgment is final." It was said in Bullard v. McArdle, 98 Cal. 355, 359, [33 Pac. 193]: "When the effect of an appeal is to transfer the entire record to the appellate court, and to cause the action to be retried in that court as if originally brought therein, as is the case when appeals are taken from a justice's court upon questions of law

32 Cal. App.-14

and fact, the judgment appealed from is completely annulled, and is not thereafter available for any purpose."

Had petitioner seasonably challenged the jurisdiction of the superior court to try the action on its merits by reason of the want of jurisdiction of the justice's court over the subject matter of the action appearing upon the face of the record, he might have brought the matter within the rule in Bartnett v. Hull, 19 Cal. App. 91, [124 Pac. 885], and Bates v. Ferrier, 19 Cal. App. 79, [124 Pac. 889]. His objection went only to the motion to substitute a copy for the original lost complaint. He made no objection to the trial of the case on its merits, and as the superior court had undoubted jurisdiction over the subject matter of the action, and also had jurisdiction to order the lost complaint to be supplied (Code Civ. Proc., sec. 1045), the alleged illegal proceedings in the justice's court complained of were not available to petitioner.

In De Jarnatt v. Marquez, 132 Cal. 700, [64 Pac. 1090], the appeal was from a judgment in a justice's court taken on questions of both law and fact. It was claimed that the superior court was without jurisdiction to try the case, for the reason that the justice's court had no jurisdiction of the subject matter of the action and hence the superior court had no jurisdiction. At the trial of the case in the superior court on its merits, defendant made no complaint of lack of jurisdiction in the superior court. It was held that the court having jurisdiction of the subject matter of the action and of the person, and the parties having gone to trial upon the merits without objection to the jurisdiction of the court, the judgment was not void. In Nolan v. Hentig, 138 Cal. 281, [71 Pac. 440], it was urged that the justice's court had no jurisdiction. The court said: "The cause was appealed to and heard de novo in the superior court, without objection to the jurisdiction. The judgment cannot now be questioned." (Citing De Jarnatt v. Marquez, 132 Cal. 700, [64 Pac. 1090].)

The writ must be denied on a further ground. It is admitted that a complaint was filed in the justice's court, and that court, therefore, had jurisdiction. This jurisdiction was not lost by the disappearance of the original complaint. A copy should have been substituted in the justice's court, but the trial had without it was an irregularity and cannot be said to have been without jurisdiction. The missing paper, as we

have seen, was authoritatively supplied in the superior court, and the cause was there tried on its merits without objection by defendant. The judgment cannot now be questioned. The writ is denied.

Hart, J., and Burnett, J., concurred.

[Crim. No. 348. Third Appellate District.-November 25, 1916.] THE PEOPLE, Respondent, v. JACK MURNAHAN, Appellant.

CRIMINAL LAW-INFORMATION-CHARGE OF DIFFERENT OFFENSES-ELECTION. Under section 954 of the Penal Code, as amended in 1915, an information may charge different offenses of the same class, and the prosecution is not required to make an election upon the admission of evidence in support of the different offenses. ID.-LEWD CONDUCT WITH CHILD-EVIDENCE-GIFTS TO PROSECUTRIX.— Upon a trial for lewd and lascivious conduct with a child of ten years, there is no error in refusing to strike out the testimony of the girl that she could not remember whether the defendant gave her candy or gum.

-

ID.- INSTRUCTION - CONSIDERATION OF TESTIMONY OF DEFENDANT. Where in the prosecution for such an offense the jury is instructed that the interest of the defendant in the result of the action does not deprive him of the benefit of his own testimony, and that his testimony is entitled to full and fair consideration the same as that of any other witness, he is not prejudiced by the modification of an instruction proposed by him in striking therefrom the following: "The defendant has offered himself as a witness and has given testimony in this case and the jury are instructed that he is competent to testify as a witness and in considering his testimony you should be governed by the same rules that control you in weighing the testimony of other witnesses who have given testimony before you in this trial."

APPEAL from a judgment of the Superior Court of Lassen County. H. D. Burroughs, Judge.

The facts are stated in the opinion of the court.

Grover C. Julian, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

BURNETT, J.-The appeal is from the judgment of conviction on three separate counts for lewd and lascivious conduct with a child of the age of ten years.

We find no merit whatever in the appeal. The evidence is ample to support the verdict. It is true it consists largely of the testimony of the girl herself, and we discover therein nothing incredible or improbable. We do not know of any legal objection to the action of the jury in accepting and basing their verdict upon the child's recital of the despicable treatment of her by appellant. We forbear to quote her statements as their publication would serve no useful purpose.

The people were not required to make an election. In fact, the information charged that three different offenses were committed at different times on the same day and the evidence supported the averments. The course pursued was justified by section 954 of the Penal Code as amended in 1915, [Stats. 1915, p. 744], providing that "the indictment or information may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts. . . . The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, but the defendant may be convicted of any number of the offenses charged, and each offense upon which the defendant is convicted must be stated in the verdict." The election of which appellant speaks is required when one act is charged and evidence is admitted of two or more similar offenses. There was no occasion here for the invocation of such principle.

There was no error in the refusal of the court to strike out the testimony of the girl that "I can't remember whether he gave me candy or gum." She was attempting to relate all that occurred between her and appellant at the time of the commission of one of the offenses. Any donation by him would certainly be a significant circumstance tending to indicate appellant's ulterior purpose. The case of People v. Mathews, 139 Cal. 527, [73 Pac. 416], is entirely different. Therein the defendant was not permitted to show that he made gifts to his victim. The decision was really based upon the ground that it was not proper cross-examination. It was

also undoubtedly open to the objection of self-serving acts and declarations.

The only other point made by appellant not suggested by the foregoing consideration is that the court erred in modifying an instruction proposed by defendant. The modification consisted in striking out the following: "The defendant has offered himself as a witness and has given testimony in this case, and the jury are instructed that he is competent to testify as a witness, and in considering his testimony you should be governed by the same rules that control you in weighing the testimony of other witnesses who have given testimony before you in this trial." But it is entirely manifest that this was covered by the following instruction given by the court: "The interest of a defendant in the result of an action does not deprive him of the benefit of his own testimony. The law makes him a competent witness in his own behalf, and his testimony is entitled to full and fair consideration by you the same as that of any other witness. He is considered innocent until the prosecution establishes the contrary by convincing proof and beyond a reasonable doubt. His evidence is entitled to full credit when you believe that he has spoken the truth, and the evidence of such witness is sufficient proof of any fact to which you believe he has truthfully testified." There were other instructions to the same effect. Indeed, the jury were fully and correctly instructed as to every phase of the case, and there is no doubt the defendant had a fair and impartial trial.

We perceive no error and the judgment is affirmed.

Chipman, P. J., and Hart, J., concurred.