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As to the first point, there is no bill of exceptions in the transcript, and, in the absence of evidence as to what took place when the order was made, we cannot presume that defendant remained silent, but, on the contrary, in support of the action of the court below, must presume that defendant assented to the order, if his assent was necessary to its validity.

With respect to the second point, the order does not prove that defendant was denied a public trial. The word "public" is used in the clause of the constitution in opposition to secret. As said by Judge COOLEY, it is not meant that every person who sees fit shall, in all cases, be permitted to attend criminal trials. "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with, and not unjustly condemned; and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly observed, if, without partiality or favoritism, a reasonable portion of the public is suffered to attend, notwithstanding that those persons whose presence would be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether." Const. Lim. side p. 312. Judgment affirmed.

(66 Cal. 221)

BROWN and others v. GREENE and others. (No. 9,241.)

Filed May 8, 1884.

Where the notice of appeal from an order denying a new trial is filed more than 60 days after the order was made and entered, the appeal must be dismissed.

Where service of notice of appeal is made by mail, service is complete at the time of deposit in the post-office, and the undertaking must be filed within five days therefrom.

Section 1013 of the Code of Civil Procedure has no application when the question is as to the service of notice of appeal.

Department 1. Appeals from the superior court for Yolo county. Flournoy, Mhoon & Thomas, for appellants.

McKune and Catlin, for respondents.

MCKINSTRY, J. This is a motion to dismiss appeals from the judg ment, and from an order denying a motion for a new trial. The judgment was entered December 6, 1882, and the order denying a new trial, April 11, 1883. The notice of appeal was filed December 3, 1883, more than 60 days after the order was made and entered. The appeal from the order must be dismissed. Code Civil Proc. 939. A notice of appeal from the judgment was filed within one year after the entry of the judgment. But the transcript contains no evidence that a similar notice was served upon the adverse party or his attorney. Id. 940. At the foot of the notice of appeals are printed the words and figures, "Service admitted December 3, 1883;" but to them is subscribed neither the name of the adverse party nor that of his attorney. Even if we were authorized to supply the name of the attorney for the adverse party, the appeal must be dismissed, because the undertaking on appeal was not filed until the eleventh day of December, 1883, more than five days after service of the notice. It seems to us very plain that a written statement, "service admitted," signed by the attorneys of the respondent, would mean, "personal service admitted."

It is contended, however, that the service may have been by mail, (Code Civil Proc. 1012,) and that we should take notice that the attorneys for one of the parties reside in San Francisco, and the attorneys for the other party in Sacramento; that the distance between the two cities is 86 miles. Even if all this could be assumed, the admission of service as of the third of December, 1883, would be an admission that the service was made on that day. The service is complete at the time of the deposit of the "similar notice" in the postoffice. Id. 1013. And to render an appeal effectual for any purpose, the undertaking on appeal must be filed within five days after service. of the notice of appeal. Id. 940. On the other hand, if the service

were not complete until the expiration of eight days after the copy of notice of appeal was deposited in the post-office, the presumption would be that the eight days had expired on the third day of Decem-ber, 1883, the date of the admission of service. But that portion of section 1013, which, in certain cases, extends the time one day for each twenty-five miles, has no application when the question is as to service of notice of appeal. After service of the notice of appeal by mail, which, as we have seen, is complete at the time of the deposit in the post-office, there is no given number of days within which the adverse party may exercise a right or do an act. The adverse party is the party on whom the service is made. There is no reason why the appellant should not file his undertaking on appeal within five days after he has deposited the notice of appeal in the post-office. He knows when it was deposited. The right of the adverse party to except to the sureties begins to run from the filing of the undertaking, not from service of the notice of appeal. Id. 948. Under section 1013 the party serving a notice can never be a party adverse to himself.

Appeals dismissed.

Ross and MCKEE, JJ., concurred.

(65 Cal. 225)

PEOPLE V. YOUNG. (No. 10,954.)

Filed May 8, 1884.

Where an information charges a burglary, in that defendant did feloniously * * ** enter "the building, to-wit, the ticket-office of the Central Pacific Railroad Company, a corporation * * with intent then and there to commit lar

ceny," the court may properly refuse to charge the jury that defendant could not be convicted unless he entered the building known as the ticket-office with intent to commit “some felony," since such instruction would imply that he could be convicted if he entered with intent to commit any felony.

One who enters with burglarious intent a room of a house, enters the house with such intent; and where such room is a "ticket-office," it may properly be described as a building, to-wit, the ticket-office."

It is not error to give the definition of burglary laid down in section 459 of the Penal Code

In such an action it is not error to charge the jury that, to constitute a room, the partition between it and the rest of the house need not extend to the ceiling or roof of the house, but that a partition eight or nine feet high from the floor would be a sufficient partition.

Department 1. Appeal from a judgment of the superior court for Alameda county, and an order refusing a new trial.

Gibson & Whitmore, for appellant.

The Attorney General, for respondent.

BY THE COURT. The information charges a burglary, in that the defendant, etc., did feloniously, etc., enter "the building, to-wit, the ticket-office of the Central Pacific Railroad Company, a corporation," etc., with intent then and therein to commit larceny. The evidence showed that the outer door of the house at the railway station led into a waiting-room for passengers, and in this room was a door leading into an inner room,-the "ticket-office," from which the evidence tended to prove the goods were stolen.

1. The information charged an intent to commit larceny. The court was, therefore, justified in refusing to charge the jury that defendant could not be convicted unless he entered the building known as the ticket-office with intent to commit "some felony." The charge would have been error against defendant, since it would imply that he could be convicted if he entered with intent to commit any felony. 2. The court did not err in refusing to charge that if defendant conceived the purpose of stealing after he entered the waiting-room, nor in charging that if the ticket-office was a room or apartment, and defendant entered it with felonious intent, the jury should find him guilty. One who enters with burglarious intent a room of a house enters the house with such intent. 2 Bish. Crim. Law, 97; 2 Whart. 1536, and cases there cited; State v. Scripture, 42 N. H. 485; 4 Bl. Comm. 26. Here, where the room in a building was known as the

ticket-office, it was properly described as a "building, to-wit, the ticket-office." If the room was in the house, and the house was a building, a felonious entry into the room was a felonious entry into the building, since burglary consists, not of entry alone, but of felonious entry.

3. The court was asked by defendant to charge: "The position of the room mentioned in the testimony as the ticket-office is not a room sufficient to sustain the allegation of the information," etc. Of course, the position of a room is not a room, but the court could not be required so to tell the jury.

4. There was no error in giving the definition of burglary laid down in section 459 of the Penal Code.

5. The court did not err in charging that to constitute a room the partition between it and the rest of the house need not extend to the ceiling or roof of the house, but that a partition eight or nine feet high from the floor would be a sufficient partition. This was not charging a fact, (the facts were left to the jury,) but stating that a room may be constructed without a partition reaching to the ceiling, etc.

6. The charge as to drunkenness was given conditionally, the jury being cautioned that they alone were to determine whether there was evidence on that subject. Besides, there was evidence that the defendant had been drinking before the alleged crime was committed.

7. The jury were properly told that the case must be decided by reference to the evidence bearing upon the issues, and that it was of no consequence whether defendant was married or single, etc. Judgment and order affirmed.

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