APPEAL from a judgment of the Superior Court of Tehama County, and from an order denying a new trial. John F. Ellison, Judge.

The facts are stated in the opinion of the court.

M. T. Brittian, for Appellant.

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

HART, J.-The defendant was charged by information filed in the superior court of Tehama County by the district attorney of said county with the violation of the provisions of section 14 of the local option law, known as the "Wyllie Act," and upon his trial for said offense was convicted by the jury. He appeals from the judgment and the order denying his motion for a new trial.

The transcript on appeal was filed in this court on the nineteenth day of August, 1916. The defendant has not, however, filed a brief or points and authorities in support of his appeal, nor was he represented by counsel when his cause was regularly called for oral argument in this court. The attorney-general, therefore, submitted the case upon the

record.

Section 14 of the Wyllie law provides: "It shall be unlawful for any person, corporation within any no-license territory, to keep, conduct or establish, as principal or agent, any place where alcoholic liquors are sold, served or distributed, or are kept for the purpose of sale or distribution, except as provided in section 16 hereof; and every day that such place shall be kept, established or conducted shall constitute a separate offense."

The evidence shows that the defendant, at about the hour of 11 o'clock on the night of April 16, 1916, was arrested at his place of residence in the city of Red Bluff, which, it was admitted, is situated within the boundaries of no-license territory; that, when the arrest was made, there were three persons under the influence of intoxicating liquor in the front room of the house; that two of these persons were sitting at a table, with a bottle of beer before them; that, in the house, were found several cases of beer, a number of

bottles of whisky and an ice-chest; that there were also found drinking glasses and a number of empty bottles and beer cases. These facts were brought out through the testimony of four witnesses, who were the officers making the arrest. It further was made to appear that the defendant had occupied the premises for about two weeks prior to his arrest and that, during that period, different people had been seen, on divers occasions and at various hours of the day, entering and leaving the house. The witnesses further testified that they found some money, amounting to a little more than two dollars in silver in a "little pitcher," fixed and attached in some manner to the wall of the room in which the men above referred to were found by the officers.

The defendant did not himself take the witness-stand, but introduced some testimony for the purpose of showing that the place or house wherein the liquors were found was his home. The proof of this fact may be conceded.

The evidence is, we think, amply sufficient to preclude this court from declaring that by it the verdict was not justified. Giving the testimony presented by the people full credit, as we are bound to do, since the jury presumptively did so, it is clear that therefrom the jury were justified in finding that, notwithstanding that the place where the liquors were found was, as was the theory of the defense, the home of the defendant, said liquors were not kept and served by the accused, "to members of his family or to his guests, as an act of hospitality" (Wyllie Law, sec. 6), but that he dispensed and served the same for money, and that thus his "home" became "a place of public resort" within the intent of the law. There was no claim made at the trial that the defendant's act or acts came within any of the other exceptions enumerated in section 16 of said law.

The instructions and the rulings of the court touching the evidence have been carefully examined, and in them no errors have been found. The charge of the court with clearness explained to the jury every principle of law pertinent to the issues.

The defendant appears to have been accorded a perfectly fair and impartial trial.

The judgment and the order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Crim. No. 356. Third Appellate 'District.-January 17, 1917.] THE PEOPLE, Respondent, v. ANDREA MAGRI, Appellant.

CRIMINAL LAW-APPEAL-FAILURE OF APPELLANT TO FILE BRIEF-REMEDIES.-Where the appellant in a criminal case fails to file a brief or points of authorities and is not represented by counsel when the case is called for oral argument, the attorney-general has two courses, to wit, to move, upon notice, for a dismissal of the appeal, or the submission of the cause for decision upon the record. ID.-ASSAULT WITH DEADLY WEAPON - SUFFICIENCY OF EVIDENCE.— In this prosecution for assault with a deadly weapon with intent to murder, it is held that there was sufficient evidence to support the verdict convicting defendant of assault with a deadly weapon, and that no error appears from the record.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a new trial. James G. Estep, Judge.

The facts are stated in the opinion of the court.

No appearance for Appellant.

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

HART, J.-The conviction complained of here is of the crime of assault with a deadly weapon, and was obtained under an information, filed by the district attorney of Shasta County, in the superior court thereof, charging the defendant with the crime of assault with a deadly weapon with the intent to kill and murder one P. Della.

The appeal is from the judgment and the order disallowing the defendant's motion for a new trial.

The clerk's transcript was filed in this court on May 1, 1916, and that of the court reporter, prepared in accordance with sections 1247 and 1247a of the Penal Code, was likewise filed on June 7, 1916.

The defendant has filed no brief or points and authorities, and was not represented by counsel when the cause regularly came on and was called up for hearing and oral argument

before this court. Under these circumstances there was open to the attorney-general either one of two courses only, viz.: 1. To move, upon notice, for a dismissal of the appeals; 2. The submission of the cause for decision upon the record. The latter course was adopted by the attorney-general, hence an examination of the record is required.

The assault charged occurred at a place called Motion, in Shasta County, on the sixteenth day of December, 1915. There is testimony disclosed by the record which, if believed by the jury, as from their verdict it must be assumed that it was, warranted the finding of these facts: That the prosecuting witness, one P. Della, had been working in a mine located a short distance from Motion; that he ceased working in said mine on the fourteenth day of December, 1915, received from the company owning the mine a check for the sum of $25 in payment for wages due him, and, on the fifteenth day of December, 1915, accompanied by a mine. laborer named O'Hara, left Coram, to which place he went from the mine on the day he quit work, started to go by foot to Iron Mountain, in said county; that on their way to Iron Mountain the two men stopped at Motion, where the defendant was then engaged as a bartender in a saloon; that the defendant and his wife lived in the building in which said saloon business was carried on; that Della and O'Hara had a number of drinks at the saloon, being waited on by the accused, and also were served with a lunch by the defendant; that, shortly after eating the lunch, O'Hara proceeded on his journey, while Della, who is an Italian, remained at the saloon; that the defendant, also an Italian, and Della thereafter had several drinks and conversed about the "old country;" that Della asked Magri to cash his check for $25, saying that he would then pay for the drinks and lunch with which he had been served; that, at about this time, Della made some reference to the defendant's brother, with whom Della claimed some acquaintance, and that thereupon the defendant became very angry and ordered Della to leave the saloon; that Della then turned toward the front door through which exit from the saloon was necessary, his back being toward the bar and the defendant; that the latter thereupon fired at Della with a shotgun, the shots entering the upper part of Della's body and inflicting two wounds, to wit, one just at the edge of the shoulder blade

and the other at the upper edge of the collar bone, both wounds being round or in circular form and one measuring an inch and three-fourths in diameter; that immediately after being shot Della left the saloon and was finally taken on a train to Redding, thence to the county hospital, where he remained and was treated for several weeks.

Thus it is manifest that no claim could well be urged in this court that the verdict does not receive sufficient support from the evidence.

The court's charge to the jury has been examined with care, and such examination has convinced us that it was full, fair, and faultless in the statement of all the principles of law essential to an enlightened consideration by the jury of the evidence and all the issues of fact developed thereby.

Nor have we in our examination of the record (which has been just as thorough as if the case had been briefed or otherwise argued in behalf of the accused) found justification for declaring that any of the rulings of the court admitting and excluding testimony involved substantial or prejudicial error. On the whole, the defendant seems to have been accorded a fair and impartial trial, and, we may add, was, under the evidence as it appears to us, exceedingly fortunate in securing a verdict adjudging him guilty of an offense of less gravity and carrying with it a penalty of much less severity than that of the crime specifically charged in the information. The judgment and the order are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1631. Third Appellate District.-January 20, 1917.] EDWARD CARLSON, Appellant, v. FARM LAND INVESTMENT COMPANY (a Corporation), Respondent. ACTION FOR RESCISSION-CONTRACT FOR PURCHASE OF REAL PROPERTYFRAUD-PLEADING FRAUDULENT INTENT-INSUFFICIENT COMPLAINT. In an action to rescind a contract of purchase of real property on the grounds of fraud and deceit, and for the recovery of damages alleged to have been sustained by the plaintiff, the complaint is insufficient, where it is not alleged that the representations concerning the property were made with intention to deceive the plaintiff, or to induce him to make the purchase to his injury.