statement there made by Alberger to Smith in the presence and hearing of Semon that "You have some of his papers, and the statement of Smith to Semon that "I wished him success in the dealings we had together," while in themselves but slight and, we think, insufficient proof of notice to the defendant of the assignment of his contract to the plaintiff, was still some evidence thereof; and if this evidence was believed by the jury to be true, and if it was considered by them in connection with the terms and scope of the written notice, of which the defendant had acknowledged receiving a copy, to be sufficient to put the defendant upon inquiry as to the state and whereabouts of his contract at the time he undertook to make his settlement with Alberger, we are unable to say that these facts and proofs, when thus considered by the jury, were not sufficient to put the defendant upon such notice that any subsequent settlement with Alberger would be made at his peril, and would thus be the equivalent in legal contemplation of actual notice of the plaintiff's intervening rights in the premises; and hence we cannot hold upon this appeal that the verdict of the jury was not supported by the evidence.

The appellant herein makes the further contention that the trial court committed an error in striking out of his answer his first pleaded defense, the substance of which was that the assignor of the plaintiff was not the owner of the automobile at the time of the sale thereof by him to the defendant; but this action of the court, even if error in the then state of the case, would be error unattended with injury to the defendant, for the reason that the contract when introduced in evidence proved not to amount to a present sale of the automobile but only to be a contract for a future and conditional sale thereof. In the case of such contracts, it is well settled that the ownership of the thing to be sold and transferred in futuro need not be in the person making the agreement of sale at the time of such agreement.

The appellant also urges that the court erred in refusing to give certain instructions requested by him, and in giving certain instructions at the plaintiff's request. These instructions related to the matters of law and fact above under discussion, and undertook to set forth in the form of instructions the respective views of the parties as to the law of the case; and, as we have seen, defendant's theory of the case has not

been adopted, and hence his offered instructions were not improperly refused.

We find no error in the record. Judgment affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 1, 1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 2, 1917.

[Crim. No. 516. Second Appellate District.-February 1, 1917.] THE PEOPLE, Respondent, v. GEORGE SWEETMAN, Appellant.

CRIMINAL LAW-POSSESSION OF STOLEN PROPERTY UNEXPLAINED EFFECT OF PROOF-INSTRUCTION.-In a prosecution for the crime of burglary, the defendant is not prejudiced by the giving of an instruction with reference to the possession of stolen property, unexplained, and the effect of such proof, where no evidence was introduced tending to show that the defendant had the property in his possession.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge.

The facts are stated in the opinion of the court.

Wm. M. Morse, Jr., and S. M. Johnstone, for Appellant.

U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.

SHAW, J.-The defendant having been convicted of the crime of burglary, appeals from the judgment and an order of court denying his motion for a new trial.

The subject of the larceny was certain plumbing fixtures, consisting of two laundry tubs and a kitchen sink, which had

been installed in a house at No. 1211 North Mariposa Street, in the city of Los Angeles, which was owned by the prosecuting witness. The evidence, exclusive of a confession made by defendant, without contradiction, shows that the tubs, which were installed upon an uninclosed porch of the house, and the sink installed in the kitchen, the door of which was locked, were, without the owner's knowledge or consent, by some person unknown to him, taken and removed therefrom between 4:30 o'clock P. M., on June 21st, and 8 o'clock A. M., the next day. The tubs were found installed in a house located at No. 803 North Wilcox Avenue, in the city, the contract for the installation of plumbing fixtures in which had been let to defendant. This evidence was amply sufficient to show the commission of the crime (People v. Wagner, 29 Cal. App. 363, [155 Pac. 649]); hence there is no ground for appellant's contention that the court erred in admitting evidence of his confession, for the reason that the corpus delicti was not established.

Neither does any ground exist for the suggestion that the confession of defendant was procured by promise of reward or immunity. On the contrary, the evidence conclusively shows that defendant freely and voluntarily, and without menace, duress, or promise of any kind, made and subscribed a written confession wherein he stated that he entered the house at about 8 o'clock P. M. and took therefrom the tubs and sink, which he installed in the other house.

The court instructed the jury: "That before an admission or confession of a defendant can be used against him as evidence, it must appear that the statement was made voluntarily, and not under duress, menace, the hope of reward or the fear of punishment. If you find from the evidence that the confession admitted in evidence was made under the promise of reward, or menace, duress, or the fear of punishment, then you must disregard the confession entirely, and unless you find from the evidence, after disregarding the confession, that the defendant committed the offense charged against him, it will be your duty to acquit." As an abstract proposition of law, the first sentence of the instruction is correct, but it is the province of the court, not the jury, to determine whether or not a confession offered in evidence should be received or rejected. (People v. Cahill, 11 Cal. App. 685, [106 Pac. 115]; People v. Gibson, 28 Cal. App. 334, [152 Pac. 316]; People v.

Barker, 60 Mich. 277, [1 Am. St. Rep. 501, 27 N. W. 539].) Hence it was error to submit to the jury the question as to whether or not the confession was obtained by promise of reward, menace, or duress, and to submit to the jurors the question as to whether or not it should have been admitted in evidence; for, if not voluntarily made, as determined by the court, it was inadmissible. Conceding the instruction to have been erroneous, in no event could it have prejudiced defendant in his substantial rights. On the contrary, the jury might have overruled the court by finding that the confession was extorted from defendant by unfair means, and in such case, following the instruction of the court, disregarded it entirely and acquitted defendant for want of sufficient evidence.

Complaint is also made that the court instructed the jury with reference to the possession by defendant of stolen property, unexplained, and the effect of such proof; the objection to this instruction being that there was no evidence showing that defendant had the stolen property in his possession. If it were conceded there was no occasion for giving the instruction, and that there was no evidence tending to show that defendant had the property in his possession, yet the giving of it could not be prejudicial.

The judgment and order are affirmed.

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

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 2, 1917, and the following opinion then rendered thereon:

THE COURT.-In denying the petition for a hearing in this court after decision by the district court of appeal of the second appellate district, we deem it proper to say that our opinion is not to be taken as an approval of that portion of the opinion which holds that the trial court erred in its instructions to the jury relative to the confession of the defendant. (See People v. Thomson, 145 Cal. 717, 725, [79 Pac. 435]; People v. Luis, 158 Cal. 185, 196, [110 Pac. 580]; People v. Profumo, 23 Cal. App. 378, [138 Pac. 109].) The district court of appeal was undoubtedly correct, however, in holding that, assuming the instruction to have been erroneous in the respect referred to, the error was not prejudicial.

[Civ. No. 2209. Second Appellate District.-February 1, 1917.]

EFFIE G. McCALEB, Respondent, v. WILLIAM H. McCALEB, Appellant.

ACTION FOR DIVORCE-DENIAL OF DECREE-AWARD OF ALIMONY EFFECT OF ACCEPTANCE-WAIVER OF RIGHT OF APPEAL.-Where, in an action for divorce, a decree is denied to both parties, but an award of alimony is made to the wife, her acceptance of the payments of the alimony awarded estops her from making a motion for a new trial for the purpose of having the judgment reviewed on appeal.

ID. JUDGMENT PART ACCEPTANCE-APPEAL FROM REJECTED PORTIONRULE. Where the different provisions of a judgment are so connected that a part cannot be reversed without a reversal of the whole, a party is not permitted to enforce the provisions of the judgment in his or her favor and appeal from the adverse portions thereof.

APPEAL from an order of the Superior Court of Santa Barbara County denying a motion to dismiss and denying a motion for a new trial. Leslie R. Hewitt, Judge presiding.

The facts are stated in the opinion of the court.

B. F. Thomas, for Appellant.

Canfield & Starbuck, and E. W. Squier, for Respondent.

JAMES, J.-In this action for divorce there are a complaint and cross-complaint and answers made to each. The case advanced to trial and evidence was introduced; whereupon the court made its findings of fact and judgment decreeing that neither party was entitled to a divorce.

Included in the decree was a provision giving to the wife alimony in the following terms: "That while the plaintiff and defendant continue to live separate and apart, that the defendant shall pay to the plaintiff the sum of ten dollars per month from and after the entry of this decree. That the payment of said allowance may be secured by a valid lien on any of the community or separate property of the defendant as the plaintiff and defendant may agree upon, and in case they cannot agree upon such security and lien, then this court shall determine what property the defendant shall convey in