lar to that in section 11, article 6, referred to above.

extending time was or was not filed; every
presumption being in favor of the regularity of
the proceedings in the court below.

Department 1. Appeal from Superior
Court, Los Angeles County; Paul J. Mc-
Cormick, Judge.

Action by G. B. Richmond against the Ju-
lian Consolidated Mining Company. Judg-
ment for plaintiff, and defendant appeals.
Affirmed.

As a matter of fact, the Constitution of 1849
did contain, in the amendments ratified in 1862,
the same provision in almost the identical terms.
The case of Astell v. Phillippi is in point. But,
even though it did appear that the demand was
for an amount in excess of the jurisdiction of
the justice's court, still, where the appeal was
regularly taken and the case was brought into
the superior court, the latter court had juris-
diction to determine the appeal on its merits.
De Jarnett v. Marquez, 132 Cal. 702, 64 Pac.
1090, cited in Riverside Heights Water Co. v.
Riverside Trust Co. et al., 148 Cal. 457, 83 Pac.
1003. We do not mean to decide that a party
properly objecting to the jurisdiction of a jus-
tice's court may not have that objection re-
viewed and passed upon on appeal; but the
record here discloses no objection as having SLOSS, J. The plaintiff recovered judg-
been made in either court. Apparently, judgment against the defendant on two prom-
ing from the face of the return, the action of
the court was taken of its own motion. How- issory notes made by defendant to plaintiff's
ever, for the reasons stated, we are satisfied that
The defendant appeals from the
the justice's court had jurisdiction of the ac-
tion, in that the value of the property involved
did not amount to $300.

The order of the superior court is annulled; petitioner to have her costs.

George P. Cook, of Los Angeles, for petitioner. Hugh E. Macbeth, of Los Angeles,

for respondents.

Sidney J. Parsons, of Los Angeles, for appellant. W. W. Butler, of Los Angeles, for respondent.

assignor.
judgment.

The record on appeal was prepared under

the alternative method. Code Civ. Proc. §§
953a-953c. It is certified by the clerk alone.

[1] The appellant's first contention is that the action should have been dismissed, on its motion, for want of diligence in prosecution. The transcript contains copies of PER CURIAM. The petition for a hearing certain notices of motion, affidavits, and orin this court, after decision by the District ders bearing on this matter. But it is setCourt of Appeal of the second Appellate Dis- tled by our decisions that, where a record is trict, is denied. As we read the opinion of made up under the alternative method, all the District Court of Appeal, the conclusion that may be authenticated by the clerk is of the court is based wholly upon the propo- the judgment roll, together with the notice sition that the justice's court had jurisdiction of appeal. In the absence of a certificate of the action, in that the value of the property involved did not amount to $300, and we are entirely in accord with what is said by the District Court of Appeal on this question. In denying the hearing, we are not to be understood as expressing any opinion upon the other question discussed in the opinion.

RICHMOND v. JULIAN CONSOL. MINING

CO. (L. A. 4067.)

(Supreme Court of California. Dec. 5, 1917.) 1. APPEAL AND ERROR 616(2)-RECORD ON

APPEAL-AUTHENTICATION.

Where the record is prepared under the alternative method provided by Code Civ. Proc. §§ 953a-953c, all that may be authenticated by the clerk is the judgment roll, together with notice of appeal, and in the absence of a certificate of the trial judge copies of certain notices of motion to dismiss for want of diligence in prosecution and affidavits and orders with reference thereto cannot be considered.

2. APPEAL AND ERROR

of the trial judge, other papers are not a
part of the record on appeal, and they can-
not be considered. Totten v. Barlow, 165
Cal. 378, 132 Pac. 749; Bush v. Allen, 172
Cal. 102, 155 Pac. 456.

[2] From recitals in the findings and the
judgment, it appears that the trial took place
something more than five years after the fil-
ing of defendant's answer. The appellant
claims that this lapse of time made it man-
datory on the court to dismiss the action

on its own motion. The last clause of section 583 of the Code of Civil Procedure, on which this claim is founded, excepts from its operation those cases in which the parties have extended the time by written stipulation. Error must be affirmatively shown; it is not presumed. On the contrary, every presumption is in favor of the regularity of the proceedings of the court below. There being nothing in the record to indicate that a stipulation extending time was, or was not, 907(1)-REGULAR-made, we must assume, in support of the action of the court in entering judgment, that it had before it such a stipulation as would justify it in proceeding.

ITY OF PROCEEDINGS IN LOWER COURT-PRE-
SUMPTION.

Code Civ. Proc. $ 583, requiring dismissal of action where no trial is had within five years after filing of answer, excepts from its provisions cases in which the parties have extended the time by written stipulation. Held that, although the trial took place more than five years after filing of answer, it would be presumed on appeal that there was a stipulation justifying trial court in proceeding where there was nothing in the record to indicate that a stipulation |

Apart from this, it is not suggested that any error appears on the face of the judgment roll.

The judgment is affirmed.

We concur: SHAW, J.; LAWLOR, J.

In prosecution of a Chinese for murder, though it was improper to ask accused how long he had belonged to a tong or society of highbinders when on objection he was then asked how long he had belonged to the tong, the error was harmless, especially where no request was made that the jury be admonished to disregard the question. 4. HOMICIDE ~~174(6)—EVIDENCE-ADMISSI-cupied by him and his family as a residence. Thomas J. Wright, a witness called on be

In prosecution of a Chinese for murder, it half of the prosecution, in substance testiwas not error to admit evidence as to the mean-fied: That shortly before the commission of ing of Chinese characters appearing on a badge the crime he was with Nung Yu, in the latfound in his possession when arrested. 5. CRIMINAL LAW 651(1)-VIEWING PREM-ter's store, when defendant, accompanied by ISES-DISCRETION OF Court.

the shooting of Yu. On cross-examination a box of 32-caliber cartridges, such as were the witness said:

"It is a pretty hard matter for me to say that he is the one that made the fatal blow, but I say he was engaged in the shooting."

used in said gun, from which six shells were missing. This room was occupied, besides defendant, by two other Chinamen, one of whom testified that the cartridges and a 32Other testimony of this witness is to the caliber pistol had been left with him by a effect that, after deceased was down, de- cousin who had gone to China, and he had fendant stood within eight or ten feet of removed six cartridges from the box to load him and fired four or five shots into his body. the pistol. Defendant explained his presThe wife of deceased also witnessed the ence in the vicinity upon the theory that he shooting and testified: That the defendant was hunting a carpenter shop located near fired one shot when her husband, who was in there, the name and address of the prothe vacant lot, fell down and, partially ris-prietor of which he had in his possession ing, said: "I belong to no tong. My name when arrested. The testimony of the eyeis Nung Yu." That defendant fired more witnesses, differing somewhat as to minor shots and then ran past her doorway. That details, which under the circumstances was as to the identity of defendant, she was pos- most natural, together with incriminating itive that he was the man who did the shoot-circumstances, the explanation of which ing. failed to satisfy the jury, clearly justified Another eyewitness, Louis Bergamaschi, the conclusion that, if the defendant did not testified: That while in his saloon, some fire the shots himself, he, nevertheless, was 200 feet distant but in plain view of the a party to the commission of the crime and place where the shooting occurred, he heard aided and abetted therein. Indeed, upon the some shots and, looking out through the rear evidence it is difficult to see how the jury window, saw deceased lying on the ground, could have arrived at any verdict other than surrounded by three Chinamen, two of whom the one rendered. started to run away and the other, said by the witness to be defendant, fired three shots at deceased, threw the gun away, and then ran through an alley past his saloon to Broadway street, upon which the saloon fronted. That witness ran to the front door of his saloon and saw the three Chinamen separate, the defendant crossing Broadway, where Officer Collins, whose attention was attracted by the witness blowing a police whistle, arrested him. In response to the question, "Was it this Chinaman" (defendant)? the witness said:

Further testifying, the witness said: "I could not prove that he is the man that done the shooting, but he was one of the men in the bunch. I know he is one of the men of the three, but I dont know if he was the man that was shooting."

Upon arresting defendant, Officer Collins, taking him by the arm, conducted him to where Nung Yu was lying, when defendant said, "I didn't do it." In applying the handcuffs, witness noticed a powder mark on defendant's right hand, and asked defendant, "How did you get this?" to which defendant replied: "You done; you done it." Again defendant said: "You did it; you did it." The bullets which caused the death of deceased were of 32-caliber size, and a 32-caliber pistol containing six shells, five of which were empty, and its condition evidencing its recent discharge, was, a few minutes after the tragedy, found some 25 feet from where Yu fell when he was shot. Afterwards Officer Richards went to the

[2] An assignment of misconduct of the district attorney is predicated upon the fact that in his opening statement to the jury he said:

"We expect to show that on the afternoon of the 5th day of March, 1917, about 1:20, a socalled highbinders' war or Chinese tong was begun in this city."

There is evidence, though slight, from which an inference might be drawn that the killing of Yu was the result of a tong feud. Conceding, however, that no evidence was offered in support of the statement so made to the jury, there is nothing in the record tending to show that it was made in bad faith or without intention of trying to support it by evidence. In the absence of such showing, it cannot be said the district attorney was guilty of misconduct because he failed to produce such evidence. People v. Gleason, 127 Cal. 323, 59 Pac. 592; People v. Searcey, 121 Cal. 1, 53 Pac. 359, 41 L. R. A. 157.

[3] It appearing from defendant's testimony that he was a member of the Bing Kong Tong, he was, on cross-examination, asked, "Now, how long have you belonged to this Bing Kong Tong or society of highbinders, as it is commonly known?" to which defendant interposed an objection upon the ground that it was incompetent, irrelevent, and immaterial. Without waiting for a ruling of the court thereon, the attorney for the prosecution, impliedly conceding the impropriety thereof, recast the question and asked, "How long have you belonged to that Tong?" No evidence had been offered that the Bing Kong Tong, of which defendant was a member, was a society of highbinders; and hence the question containing the implica

Nevertheless, trial courts not to make use of the power therein given except in cases which seem to imperatively call for it."

have been put to the witness.
we are unable to perceive, under the circum-
stances, how defendant could in any event
have been prejudiced thereby. Moreover,
no request was made by defendant's attor-
ney that the trial court admonish the jury
to disregard the question, in the absence of
which, where such admonition may cure the
error, it has been held this court will not
consider the same. People v. Metzler, 21 Cal.
App. 80, 130 Pac. 1192; People v. Shears, 133
Cal. 154, 65 Pac. 295; People v. Bradbury,
151 Cal. 675, 91 Pac. 497.

[4] Neither was it prejudicial error to receive evidence as to the meaning of Chinese characters appearing on a badge found in defendant's possession when arrested. As translated these characters were, "Congratulations on the dedication," and then in English, “B. K. T. of San Francisco, California," followed in Chinese by, “San Francisco Bing Kong Tong Representative, Wong Yak Shu." Defendant's possession of the badge with these characters is accounted for in the fact, as shown by him, that he had, as a delegate from the San Francisco society, recently represented it at a meeting of the Seattle branch in the dedication of a new building. While the shots fatal to defendant were fired from a 32-caliber revolver, it appears also that a 38-caliber revolver, found at the place where the shooting occurred, was used by one of the persons engaged in attacking Yu, one shot from which took effect in his thigh, and concerning which witness Davis stated it contained five empty shells and one loaded. The revolver, however, as appears from the record, was not offered in evidence, but, at the request of the prosecution, merely marked as an exhibit. Hence there is no ground for appellant's contention that the court erred in admitting this revolver in evidence, since it was not so admitted.

[5] Error is also predicated upon a ruling of the court refusing to make an order granting defendant's request that the jury be permitted to view the premises where the of fense was committed. Section 1119 of the Penal Code provides:

"When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body * to the place.

In the case at bar a plat, correctly delineating the premises and objects surrounding the scene where the offense was committed, was used by the witnesses in giving their testimony, and there is nothing in the record which in the slightest degree discloses any abuse of discretion on the part of the court in making the order complained of.

[6, 7] Appellant challenged the giving to the jury of an instruction as follows:

"It is the law, gentlemen, that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, or, not being present, have advised and encouraged its commission, are principals in any crime so committed. So that in the case before you, if you are satisfied beyond all reasonable doubt that the defendant here directly committed the crime charged, or aided and abetted in its commission, or, not being present, advised and encouraged its commission, you will be justified in finding him guilty as a principal."

The attack thereon made is that appellant, conceding the correctness of the instruction as an abstract proposition of law, insists it. is inapplicable to the facts established and theory upon which the case was tried. By the provisions of section 1127, Penal Code, it is made the duty of the court to charge the jury as to all matters of law necessary for their information. Reference to the résumé of the evidence hereinbefore made discloses two theories either of which, if found correct, justified the verdict rendered. That deceased was attacked by three men, one of whom was defendant, clearly appears, and, according to the positive testimony of the wife of deceased, he fired the fatal shots. But concede that her testimony, notwithstanding its support, was deemed insufficient proof of the fact, other testimony that of Wright and Bergamaschi, if believed, together with incriminating circumstances established, constituted proof inconsistent with any theory other than that he was there present aiding and abetting in the commission of the crime. The character of the evidence and reasonable inferences to be drawn therefrom were such that the jury in arriving at its verdict might have adopted either of the two theories: (1) That defendant fired the fatal shots; or (2) that, while not guilty ting in the acts which deprived Nung Yu of of so doing, he was present aiding and abethis life. Hence in charging the jury it was proper for the court to instruct it as to both theories. The term "aiding and abetting" which the jurors must be deemed to have are commonplace words, the meaning of understood; hence, and especially in the absence of a request therefor, the court was not called upon of its own motion to define them.

Under this provision the making of such order is a matter committed solely to the discretion of the court, and it is difficult to conceive of a case in which the facts would justify a reversal for an abuse of such discretion. People v. Maupins, 30 Cal. App. 393, 158 Pac. 502; People v. Howard, 28 Cal. App. 180, 151 Pac. 754. In People v. Fitzpatrick, 80 Cal. 538, 22 Pac. 215, it is said: "Sending a jury out to view premises, even when clearly within section 1119 of the Penal Code, is a hazardous proceeding, and frequently A careful examination of the entire tran

fair and impartial trial, free from any preju- [ and joined with the plaintiff in assailing the dicial error disclosed by the record. conveyance.