The action was brought to recover the reasonable value of materials alleged to have been furnished, and services alleged to have been rendered, at the special instance and request of the defendants, who were husband and wife, in and about certain premises alleged to be the separate property of the wife. The answer denied, generally and specially, every allegation of the complaint. Judgment was rendered in favor of the plaintiff. The further facts are stated in the opinion of the court.

Nygh, Fairweather & Durst, for Appellants.

The general finding that all the material allegations of the complaint are fully sustained and proved is insufficient. (Cassidy v. Cassidy, 63 Cal. 352; Ladd v. Tully, 51 Cal. 277; Breeze v. Doyle, 19 Cal. 105; Harlan v. Ely, 55 Cal. 340.)

George H. Buck, and George E. Filkins, for Respondent.

MCKINSTRY, J. The complaint alleges the defendants to be husband and wife, and that the services rendered and materials furnished (the value of which is sued for) were rendered at the special instance and request of defendants, upon and furnished for a building, the separate property of the wife; that the defendants. promised to pay or such services and materials.

The court found "that all the material allegations in the plaintiff's complaint are fully sustained and proved." This is insufficient. (Cassidy v. Cassidy, 63 Cal. 352; Ladd v. Tully, 51 Cal. 277.) The finding continues: "And that said labor performed and materials furnished, as alleged in said complaint, were and are for the benefit, profit, convenience, and use of defendants, and to said house and premises, and that the charges for said labor performed and material furnished were and are reasonable and proper."

There is no distinct finding that any labor was performed or that any materials were furnished. There is

no finding that the services, etc., were rendered at the instance or request of the defendants, or either of them, or that husband or wife promised to pay therefor, or that the defendants were husband and wife, or that the services, etc., were rendered in or about the separate property of the wife, or that the house mentioned in the complaint was her separate property. Nor is there any distinct finding of the value or reasonable worth of the services rendered or materials furnished.

Judgment reversed, and cause remanded for a new

trial.

MYRICK, J., and THORNTON, J., concurred.

H. H. GROSS, PETITIONER, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO ET AL., RESPONDENTS.

JUSTICE'S COURT

APPEAL TO SUPERIOR COURT CHANGE OF PLACE OF TRIAL. Under section 5 of article 6 of the constitution, an appeal from a Justice's Court to the Superior Court of the county in which the action was brought cannot be transferred to another county for trial, notwithstanding the defendant is a resident of the latter county.

APPLICATION for a writ of review. The facts are stated in the opinion of the court.

F. M. Husted, for Petitioner.

The provisions of section 980 of the Code of Civil Procedure, purporting to authorize a change of the place of trial of an appeal from a Justice's Court, are unconstitutional. (Const., art. 6, sec. 5; Ex parte Bollman, 4 Cranch, 93; S. C. Water Co. v. Vallejo, 48 Cal. 72.)

Ernest H. Wakeman, for Respondents.

The order changing the place of trial was properly granted, and was not in excess of the jurisdiction of the

Superior Court.

(Code Civ. Proc., secs. 980, 395; Hough

ton's Appeal, 42 Cal. 35.)

SHARPSTEIN, J.- Petitioner commenced an action in the Justice's Court of San Francisco, against John S. Cleland, a resident of Siskiyou County, upon a cause of action for goods sold to Cleland by petitioner at San Francisco.

The defendant answered and went to trial. Judgment was rendered against him, and he appealed to the Superior Court of San Francisco.

After the papers were filed in the Superior Court, on the appeal, the defendant moved for a change of place of trial on the sole ground that he was a resident of the county of Siskiyou, which motion was granted.

This proceeding is certiorari, to review the order granting the motion.

The constitution provides that Superior Courts "shall have appellate jurisdiction in such cases, arising in Justice's and other inferior courts in their respective counties as may be prescribed by law." (Art. 6, sec. 9.)

As this case did not arise in a Justice's or other inferior court in Siskiyou County, it is quite clear that the constitution confers no jurisdiction of it on the Superior Court of that county, and that the appellate jurisdiction is exclusively in the Superior Court of San Francisco, where the case was commenced and tried in a Justice's Court. It therefore follows that the order changing the place of trial must be annulled.

Order annulled.

MCKINSTRY, J., MYRICK, J., MORRISON, C. J., and THORNTON, J., concurred.

[No. 20232. In Bank. - December 7, 1886.]

THE PEOPLE, RESPONDENT, v. R. H. JOHNSON, APPELLANT.

CRIMINAL LAW

ID.

ID.

ID.

ID.

EMBEZZLEMENT

CONVICTION

PRONOUNCING JUDGMENT - INFORMING DEFENDANT OF NATURE OF CHARGE — IMMATERIAL ERROR - ARREST OF JUDGMENT. The defendant was charged by information with the crime of embezzlement, and the verdict was guilty as charged. The defendant moved in arrest of judgment on the ground that the information charged no crime. The motion was overruled, whereupon the court proceeded to inform the defendant of the information charging him with the crime of grand larceny, of his arraignment and plea of not guilty thereto, and of his trial and the verdict of guilty. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replied in the negative. The court thereupon adjudged him guilty of grand larceny, and ordered him to be imprisoned for that offense. A judgment declaring that the defendant had been convicted of grand larceny was thereupon entered. Held, that the motion made by the defendant in arrest of judgment warranted the presumption that 1. › knew of the nature of the crime of which he was charged, and that the erroneous statement by the court of the crime charged in the information was without prejudice.

JUDGMENT MUST CONFORM TO VERDICT.

Held further, that the judgment, not being for the crime of which the defendant was convicted, should be reversed, with directions to the lower court to render a judgment for embezzlement.

EMBEZZLEMENT BY BAILEE

SUFFICIENCY OF INFORMATION. An information against a bailee for embezzlement, under section 507 of the Penal Code, is not subject to a general demurrer on the ground that the defendant is not named therein as a bailee, if the terms of the contract between him and the person alleged to have been injured are specifically set forth, and the contract clearly shows that the defendant was thereby constituted a bailee, and received the property embezzled in that capacity.

SUBSEQUENT ARREST FOR SAME OFFENSE COMMITTING MAGISTRATE VALIDITY OF INFORMATION JURISDICTION. The defendant was arrested on a warrant issued by a justice of the peace of a certain township, on a complaint filed before him. Thereafter, and while this proceeding was pending, he was again arrested on a warrant issued by a justice of the peace of another township, and was by him committed. On this commitment, the information was filed under which he was convicted. Held, that the proceeding before the first magistrate did not affect the validity of the information, nor deprive the Superior Court of jurisdiction.

WHEN LIES.

MOTION IN ARREST OF JUDGMENT A motion in arrest of judgment must be founded upon defects in the indictment or information, appearing on the face thereof.

APPEAL from a judgment of the Superior Court of Yolo County.

The defendant was arrested on a warrant issued on a complaint filed on the 18th of January, 1886, before one A. C. Ruggles, a justice of the peace of Cache Creek township, Yolo County, and while in custody of the sheriff under this warrant, was again arrested on a warrant issued on a complaint filed on the 27th of March, 1886, before one H. C. Duncan, a justice of the peace of another township in the same county. On the last-named day the defendant was committed by Duncan, and on this commitment the information under which the defendant was tried and convicted was filed. On the 11th of June, 1886, the sheriff, and the warrant issued by Ruggles, took the defendant before him, and he was thereupon discharged. The further facts are stated in the opinion of the

court.

Thomas & Hurst, for Appellant.

The information was insufficient, in not alleging that the defendant was a bailee. (2 Bishop's Criminal Procedure, secs. 315, 333; 2 Bishop's Criminal Law, secs. 374, 375; People v. Cohen, 8 Cal. 42; People v. Peterson, 9 Cal. 313; People v. Poggi, 19 Cal. 600; People v. Smith, 23 Cal. 280; People v. Doss, 39 Cal. 438; People v. Tomlinson, 66 Cal. 344; Ex parte Hedley, 31 Cal. 108; People v. Garcia, 25 Cal. 531; People v. Jersey, 18 Cal. 337; People v. Allen, 5 Denio, 76; People v. Stein, 1 Park. Cr. 207; McCann v. United States, 2 Wy. T. 267; Alden v. State, 18 Fla. 187; State v. Mims, 26 Minn. 191; 1 Wharton's Criminal Law, sec. 1043.) The Superior Court had no jurisdiction of the information. (Pen. Code, secs. 824-826; Ex parte Branigan, 19 Cal. 133; Ex parte Walsh, 39 Cal. 705.) The judgment, not being for the crime of which the defendant was convicted, is void. (Ex parte Ring, 28 Cal. 248; Ex parte Brown, 32 Cal. 49; Ex parte Dobson, 31

LXXI. CAL.-25