and told the plaintiff that the company would protect him; and that one Griffiths, another lessee, under the direction of the superintendent, threw down certain waste upon the plaintiff and covered up his ore. The jury returned a verdict for the plaintiff for $3,000, upon which a judgment was rendered, and the defendant has appealed.

The defendant complains of the seventh instruction given by the court. It reads, in part, as follows: "You are further instructed that the defendant company, through its agents and servants in charge of its mine, had the authority and power, and it was the defendant's duty, if it knew that other lessors in its mine were mining their blocks of ground in such manner as necessarily to injure the rights of the plaintiff, Peterson, to take some active measures to prevent it." If such a duty rested upon the defendant company, it must have been grounded upon some contract right of plaintiff, Peterson, or upon some legal obligation. In his brief it is urged that: "The defendant recognized the conditions and took covenants with the right of forfeiture reserved for their breach from Malvy and from Griffiths to the effect that the said lessees would, among other things, observe a due regard for the rights and convenience of other lessees," etc. And, further, that: "The company's agents should have the right to prohibit such operations." We do not see how such a stipulation in a contract between the company and other lessees can give the plaintiff, not a party to such an agreement, any contractual right to demand that the company, for his protection, interfere with the other lessees, nor impose any duty upon the company to one in the situation of plaintiff in this case, unless some covenant or stipulation in the plaintiff's own lease with the company gave him the right to invoke the benefit of provisions in the lease to a third party. There is no such stipulation or provision in the leases between the plaintiff and the company.

The plaintiff, however, contends, apparently, that the law imposes a duty upon a lessor in a case such as this. The general rule is correctly stated in the defendant's tenth request for an instruction, which was erroneously refused. It is, in substance, as follows: "That a landlord is not liable to one tenant for an improper use of a part of the premIses by another tenant, unless the landlord knowingly lets such part for the purpose of being used in such improper manner, or authorizes or causes such improper Jones on Landlord & Tenant, § 605. v. Basterfield, 4 M. G. & S. 784, 56 E. C. L. 782; Leonard v. Gunther, 47 App. Div. 194, 62 N. Y. Supp. 99; Edwards v. N. Y. & H. R. K., 98 N. Y 245, 50 Am. Rep. 659. It is to be conceded that where premises are let to be used for a particular purpose, which would naturally or necessarily cause an annoyance

use." Rich

to the injury of another tenant, the landlord is liable to such other; but that principle does not go to the length set forth in the instruction complained of. Between two lessees of different portions of a mine situated as were the plaintiff and Malvy in this case in relation to each other, each knows that the only use to which the ground can be put is mining. Each, knowing the exigencies of that business, should bear them in mind when he makes his contract of lease and require from the mine owner, the lessor, such reasonable stipulations as will tend to protect the lessee. Each, knowing the exigencies of the business in which both are engaged, should bear them in mind when he makes his contract of lease, and require from the mine owner, the lessor, such reasonable stipulations as will tend to protect himself. In this case, even though, as alleged by the plaintiff, the operations of Malvy above the plaintiff's ground were found to interfere with the plaintiff's rights in his own premises, yet under the circumstances, as they appear in evidence, surrounding the parties, it is not shown that when the lease was made to Malvy it could have been foreseen that Malvy's operations would necessarily interfere with the plaintiff's ground. It cannot be presumed, merely because one block of ground is above the other, that the working of the upper would injure the lower, and the lessee of the lower should protect his own rights as far as possible in making a contract against the operations of one above him, if the situation requires it, rather than wholly rely upon a supposed duty of the lessor, the mine owner, to protect him at all hazards. The court erred in giving the seventh instruction, and in refusing the defendant's tenth request, and such errors are sufficient to require a reversal.

Error is predicated upon the refusal of the court to give defendant's twelfth request. While it is the general rule that where a lessee is interrupted, or his property injured, by another tenant of the lessor, the lessee's remedy is against the other tenant, and not against the lessor, it is subject to qualifications under some circumstances, and the request, as made, states the rule inaptly and too narrowly, and would have been misleading in this case. The request was therefore properly refused.

It is alleged that the court erred in giving the fifteenth instruction, to the effect that, if the defendant was found responsible for Malvy's acts, it is immaterial whether Malvy acted maliciously or otherwise. This instruction is not addressed to any issue in the case and should not have been given; but, if it were the only error, a reversal could not be directed upon that ground, because the error is entirely harmless.

The refusal of the court to give defendant's second request is assigned as error. In this request the court was asked to instruct "that

the lease of August 14, 1903, is not shown by the evidence to have been extended by the parties, and that it conclusively appears in the evidence that such lease became null and void February 14, 1904." Unless the evidence were so clear as to admit of no controversy, to give such an instruction would clearly be an invasion of the province of the jury. The evidence is not such as to warrant the court in giving it. Whatever controversy there may have been as to the facts involved it was proper to submit to the jury, and it was therefore not error to refuse this request.

Numerous other errors are assigned; most of them taking exception to the admission of evidence. We do not deem it necessary to mention these, because the principles laid down in discussing the matters already adverted to we think will be found sufficient to dispose of all the other assignments of

ground upon the said ore bodies and upon the workings of said plaintiff, and therefore prevented him from mining the said property and from extracting the ore therefrom," by reason of which plaintiff alleges that he sustained damages. The action therefore was predicated upon the "wrongful and unlawful" acts of the defendant. The evidence, however, tended to show that the ground was caved through the willful or negligent acts of a co-tenant of plaintiff, and that the defendant had notice of these acts, and could have terminated the co-tenant's lease, and thus prevented him from continuing the injuries complained of by the plaintiff. The instruction set forth in the opinion written by Judge RITCHIE proceeds upon the theory that it was the duty of the defendant to protect the plaintiff against all acts of a co-tenant in case the defendant, through its officers, agents, or servants, had knowledge of such acts. I do not think the law goes to this extent as between a landlord and his tenant for the negligent and willful acts of a cotenant. Nor was the complaint framed upon this theory.

It may be conceded that, as a general rule, the landlord is liable for injuries resulting

from his own negligence, but not those that result from that of his tenants. The landlord, except for an existing nuisance, is liable to his tenants for overt acts only, and not for mere nonfeasance. Gordon v. Peltzer, 56 Mo. App. 599; White v. Montgomery, 58 Ga. 204; Taylor on L. & T. (8th Ed.) 199. The evidence in this case does not support the allegations of the complaint, but is clearly to the effect that the acts complained of were caused by the negligent or willful acts of the co-tenant of plaintiff. The instruction referred to above therefore was not proper under either the allegations of the complaint or the evidence, and hence was erroneous. Counsel for plaintiff, however, seek to sustain the judgment upon the doctrine that the landlord is liable for a nuisance existing upon the premises which causes injury to a third person. While this doctrine is well established, the proof does not establish the fact that the working of the mine immediately above the ground leased to plaintiff constituted a nuisance per se. Indeed, as I have already pointed out, it appears from the evidence that the injuries of which the plaintiff complains were caused through the negligent or willful acts of plaintiff's co-tenant. The principle of law upon which the landlord is held liable in cases of nuisance is well and tersely stated in Taylor on L. & T. (8th Ed.) 195, 196, in the following language: "But to render him (the landlord) liable the nuisance must be one that necessarily arises from the tenant's ordinary use of the premises for the purpose for which they were let, and not to be avoidable by reasonable care on the tenant's part. If it (the injury) is produced only by the act of the tenant, he alone is responsible."

If, therefore, the plaintiff had alleged and proved facts showing that the condition of the upper workings of the defendant's mine leased to the co-tenant of plaintiff was such that the mere ordinary use thereof with reasonable care would necessarily have resulted in the injuries complained of by the plaintiff, then he would have brought himself within the principle he invokes; but, having failed to do this, he cannot be permitted to sustain the judgment upon that ground. Nor can the plaintiff recover in view of the alle gations of the complaint, unless he establishes facts from which the jury may find some overt act or acts which constitute negligence on the part of defendant or its officers or authorized agents or servants; or that the defendant, through its officers or agents, as aforesaid, committed some act or acts, or in effect directed others to do such as were injurious to the plaintiff. In such event, however, the instructions should harmonize with the allegations of the complaint and the evidence given in support of them.

(6 Cal. App. 266)

PEOPLE v. MCPHERSON. (Cr. 58.) (Court of Appeal, Second District, California. August 23, 1907.)

1. CRIMINAL LAW-APPEAL-RECORD-FILING OF PAPERS CONSTITUTING RECORD.

Under the express provisions of Pen. Code, §§ 1207, 1246, on appeal from a conviction, the clerk must transmit to the appellate court the indictment or information, a copy of the minutes of the plea or demurrer, a copy of the minutes of the trial, the written instructions given, modified, or refused, with the indors ments thereon, a certified transcript of th court's charge, and a copy of the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2782-2802.1

2. SAME-REVIEW-APPEAL FROM JUDGMENT

3. SAME.

Under the express provisions of Pen. Code, $1269, upon an appeal by defendant from the judgment, the court may review any intermediate order or ruling involving the merits or which may have affected the judgment. 4. FORGERY-ELEMENTS OF OFFENSE.

The essential elements of forgery are a false making of some instrument, a fraudulent intent, and that, if genuine, the writing might injure another.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forgery, §§ 1-7.]

5. SAME INFORMATION-ALLEGATIONS FECT OF FORGERY.

EF

Where a forged instrument is valid on its face, it is not necessary to allege in the information matters aliunde to show in what manner the person alleged to have been injured could be affected by the forgery, nor to show that he owned property that would be affected thereby.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Forgery, $$ 77-81.]

6. SAME-SUFFICIENCY OF INFORMATION.

In a prosecution for forgery, an information is not defective because it cannot be determined therefrom whether the charge is for forging a fictitious deed or signing a person's name to a deed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Forgery, §§ 66-73.]

7. SAME-STATUTORY PROVISIONS.

An information for forging a deed is properly brought under Pen. Code. § 470, respecting the forgery of conveyances, and not under section 476, on the passing or uttering of fictitious bills.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23. Forgery, $§ 2, 10, 14.]

8. SAME SUFFICIENCY OF ALLEGATIONS OWNERSHIP OF PROPERTY.

It is not necessary to allege, in an information for forging a deed, that the person whose name was forged to it was the owner of the property described in the deed at the time of the forgery; that being a matter of evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Forgery, § 81.]

9. CRIMINAL LAW-LIMITATION-COMPUTATION OF TIME.

For the purpose of testing the sufficiency of an information for forgery under the statute of limitations, the date of the commission of

the offense alone can be considered; the date of the forged instrument being immaterial. 10. SAME TRIAL ADMISSIBILITY OF EVIDENCE EVIDENCE OF ANOTHER CRIME.

On a forgery trial, evidence that accused procured the return of the forged instrument to him under an assumed name was not rendered inadmissible because it tended also to show that he was guilty of the crime of impersonating another.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law. § 823.]

11. SAME-TRIAL-RECEPTION OF EVIDENCEREOPENING CASE-DISCRETION OF Court.

The court acted within its discretion in reopening the case for further evidence in a prosecution for forgery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1619-1627.]

12. SAME-INSTRUCTION ASSUMING FACTS NOT IN EVIDENCE.

On a forgery trial, an instruction which assumes that an expert witness had been paid for his services, in addition to the fees allowed ordinary witnesses, was properly refused; there being no evidence thereof.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1754-1764.] 13. SAME.

On a forgery trial, an instruction which calls an expert a "hired witness" was properly refused.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1889-1894.]

14. SAME-INSTRUCTIONS NOT SUSTAINED BY

EVIDENCE.

On a forgery trial, an instruction dealing with witnesses who were "persons interested in or employed to find evidence against accused" was properly refused, where there was no evidence that such witnesses had testified. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14. Criminal Law, §§ 1980-1985.] 15. SAME.

On a forgery trial, an instruction that the same rules applicable to persons interested in or employed to find evidence against accused, when witnesses should be applied to detectives, was properly refused; there being no evidence to Show that a detective who testified as an expert was a hired witness.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14. Criminal Law, §§ 1980-1985.]

16. SAME-APPEAL-MATTERS NOT APPARENT OF RECORD.

On appeal in a criminal prosecution, matters not shown by the record, but only appearing by statements of counsel in argument, cannot be considered by the court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2953.]

Appeal from Superior Court, Los Angeles County; B. N. Smith, Judge.

C. F. McPherson was convicted of forgery, and appeals. Affirmed.

Wallace W. Wideman. Benj. C. Welch, and J. C. Crouch, for appellant. U. S. Webb, Atty. Gen., and George Beebe, Deputy Atty. Gen., for the People.

TAGGART. J. Appeal from a judgment upon conviction of forgery, and from an order of the trial court denying defendant's motion for a new trial.

The information is attacked by demurrer, and the same objections are urged upon motion in arrest of judgment. The other errors

assigned by appeliant, and upon which he bases his appeal from the order denying his motion for a new trial, are: (1) The introduction of evidence tending to show that the defendant had committed another and different crime; (2) the reopening of the case to permit the prosecution to introduce additional evidence after the people had rested and the defendant moved to dismiss the action; and (3) the refusal of the court to give certain instructions requested by defendant.

The Attorney General objects to the consideration of the ruling of the court on the demurrer to the information, because no bill of exceptions appears in the record preserving the exceptions to the ruling and identifying the papers used upon the hearing. This objection is based upon the decision of the Supreme Court in People v. Long, 121 Cal. 494, 53 Pac. 1097, subsequently followed by the Appellate Court in two cases. People v. Druffel, and People v. McPherson, 86 Pac. 907. These were all appeals by the people from orders sustaining demurrers to indictments. In such cases, as said in the opinion in the leading case, there is no provision for a judgment roll or record of any kind, and, if the matter be heard by an appellate court at all, it must be upon a bill of exceptions under sections 1172 and 1174 of the l'enal Code.

When a judgment is rendered against a defendant, upon conviction the clerk of the trial court is required (within five days) to "annex together and file the following papers, which constitute a record of the action: (1) The indictment or information, and a copy of the minutes of the plea or demurrer; (2) a copy of the minutes of the trial; (3) the written instructions given, modified, or refused, with the indorsements thereon, and the certified transcript of the charge of the court; and (4) a copy of the judgment." Section 1207, Pen. Code. An appeal being taken, the clerk must transmit to the Appellate Court, among other matters, the foregoing record. Section 1246, Pen. Code. The appeal from the judgment alone. without a bill of exceptions, brings up the judgment roll (called in section 1207 "a record of the action"), and presents for review the sufficiency of the information. any errors disclosed in the minutes, and the propriety of the instructions given, and refused. People v. Clark, 121 Cal. 634, 54 Pac. 147.

"Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment." Section 1269, Pen. Code. We have before us in the transcript, among the papers properly transmitted by the clerk, the information, and the minutes of the demurrer. These show the ruling of the court and defendant's exception to the ruling upon the information. It is apparent from an examination of these that the information is suffi

cient. The essential ingredients of the crime of forgery are: A false making of some instrument; a fraudulent intent; and, if genuine, that the writing might injure another. People v. Frank, 28 Cal. 514; Ex parte Finley, 66 Cal 263, 5 Pac. 222. Whatever the character of the writing, the true test is the intent to defraud. People v. Munroe, 100 Cal. 664, 35 Pac. 326, 24 L. R. A. 33, 38 Am. St. Rep. 323. If the forged instrument be valid on its face, it is not necessary to allege matters aliunde to show in what manner the person alleged to have been injured could be affected by the forgery, nor show that he owned property that would he affected thereby. People v. Todd, 77 Cal. 464, 19 Pac. 883; People v. Bibby, 91 Cal. 474, 27 Pac. 781; People v. Leonard, 103 Cal. 203, 37 Pac. 222.

The information is not defective because it cannot be determined therefrom whether the charge is for forging a fictitious deed or signing the name of James Wallace to the deed. The information is to be considered with reference to the provisions of section 470 of the Penal Code, and not section 476. It is not necessary to allege that James Wallace was the owner of the property described in the deed at the time of the alleged forgery. This was a mere matter of evidence.

Equally untenable is the position taken by appellant upon the oral presentation of the case. The crime is alleged by the information to have been committed on or about the 7th day of June, 1906. The instrument said to have been forged is set out in the information in extenso and bears date of March 18, 1889. It is urged that the prosecution is barred by the statute of limitations, because the information was not filed within three years after the date of the deed. In other words, the contention is made that by judiciously dating the forged instrument more than three years prior to its utterance the forger may protect himself from prosecution for the crime. To state the proposition is sufficient reason for refusing to adopt it. For the purpose of testing the sufficiency of the information the date of the alleged commission of the offense (June 7, 1906) alone can be considered, and the date of the forged instrument is immaterial.

The evidence of the witness Green, introduced to show that the defendant procured the return to him of the forged deed under the name of Ben M. Bell, was properly admitted. That it tended also to show that he was guilty of another crime, that of impersonating another, did not affect its admissibility. People v. Sanders, 114 Cal. 216, 230, 46 Pac. 153; People v. Ebanks, 117 Cal. 652, 49 Pac. 1049, 40 L. R. A. 269.

The reopening of the case for further evidence was within the discretion of the trial court, and the record here discloses no abuse of that discretion. This has been held to be the rule even after the defendant has closed his case. Cousins v. Partridge, 79 Cal. 228,

21 Pac. 745; People v. Lewis, 124 Cal. 551, 57 l'ac. 470, 45 L. R. A. 783.

The testimony for the prosecution included that of an expert on handwriting, and that of a police detective. The court gave the usual general instruction as to how the credibility of a witness is to be determined, to wit: “By his character and conduct, his manner on the stand, his relation to the controversy and to the parties, if any, his hopes or his fears, his bias or impartiality, the reasonableness

unreasonableness of the statement he makes, the strength or weakness of his recollection, viewed in the light of all the other testimony and facts and circumstances in proof in the case." No special instructions were given in relation to expert or detective testimony. Six instructions along this line were requested by defendant, but were refused. Most of these were framed upon the theory that the testimony showed, or tended to show, that the expert had been paid. The only testimony bearing upon this question appears in the cross-examination of the witness Lackey, the handwriting expert, who testified that he had no contract to be paid for testifying in the case, but expected to be paid for it; that no price was set; he didn't know what his bill would be; and hadn't given the matter any consideration. There is no direct evidence in the record that he expected anything more than his witness fee. Had the court been requested to give the jury properly framed instructions embodying the law of evidence applicable to expert and detective testimony, it would have been its duty to do so, notwithstanding it had given a general instruction relative to the consideration of the bias, interest, and impartiality of the witnesses and their relations to the parties, and controversy, but we do not think any error was committed by refusing to give the instructions the refusal of which is assigned as error by appellant.

Instruction "No. 2" assumes that it was shown that the expert had been "paid for his evidence"; "No. 3" that he had been paid for his services in addition to the legal fees allowed ordinary witnesses; "No. 4" contains the same assumption; "No. 5" deals with a "hired witness" in general; "No. 6" with "persons interested in or employed to find evidence against the accused"; and "charge 7" instructs the jury to apply the same rules above stated to the testimony of detectives. Without any evidence whatever to indicate that the police detective was in any manner a "hired witness," the court is asked to apply the same rules to him. For the court to assume for the purpose of instructing the jury that because a person who acted as an expert testified that he expected to be paid for testifying, that the pay spoken of must of necessity be other than his ordinary witness fees, would, in the absence of evidence to this effect, be unwarranted and improper. So it would also be improper to characterize such a person to the jury as a

"hired witness." There was no evidence that either the expert or the detective, or any one else, was employed to find evidence against the accused in this case. That the detective received a regular compensation for dischar ging his duties as a public officer might be assumed, and in so far as he aided in securing the evidence upon which the conviction rested he was employed to find evidence but instruction No. 6 was not framed on that theory. Charge 7 is too vague and indefinite, and must stand or fall with the foregoing instructions, which were properly refused.

On the oral presentation of this case, it was urged, in support of the appeal, that the defendant was imprisoned in the jail of Los Angeles county upon this charge and not indicted, at the time the grand jury of the county were in session, and that body failed to inquire into the case, as provided by section 923 of the Penal Code. The transcript contains no reference to this matter, and we cannot accept the oral statement of facts by counsel in argument, in lieu of the printed or written record required by the rules of this court. If it were a matter that might be considered upon a proper record, it is not before us now.

We find no prejudicial error in the record, and the judgment and order are aflirmed. We concur: ALLEN, P. J.; SHAW, J.

STEELE, C. J. Action was brought against the defendant to recover $162, alleged to be due and owing to the plaintiff from the defendant for the rent of certain premises in the city of Telluride. The defendant admitted that he had occupied the premises, but testified that he had paid the rent. There is a direct conflict in the testimony concerning the payment. The court found that payment had not been made, and rendered judgment in favor of the plaintiff. The defendant appealed to the Court of Appeals. The finding and judgment, upon conflicting evidence, should not be disturbed.

The judgment is affirmed.

CASWELL and MAXWELL, JJ., concur.