416. and authorities therein cited. The attachment being actually released, such release was the agreed consideration for the note. We find no error in the record, and the judgment is affirmed.

We concur: SHIAW, J.; TAGGART, J.

(4 Cal. App. 432)

PEOPLE v. FITTS. (Cr. 72.) (Court of Appeal, First District, California. Nov. 23, 1906.)

1. ROBBERY — ASSAULT WITH INTENT-INSTRUCTION AS TO SIMPLE ASSAULT.

On a prosecution for assault with intent to commit robbery, there being no evidence of assault except in connection with the attempt to commit robbery, no instruction as to simple assault need be given.

2. CRIMINAL LAW HARMLESS ERROR-INSTRUCTION.

The giving of an instruction that, if any of the witnesses willfully swore falsely as to any material matter, it is the duty of the jury to distrust their entire testimony, if violative of the inhibition of the Constitution against charging with respect to matters of fact, is harmless; it being as to mere commonplace matters within the general knowledge of the jurors. 3. SAME ARGUMENT OF COUNSEL-REFERENCE TO DEFENDANT'S NOT TESTIFYING.

Under Pen. Code, § 1323, declaring that neglect of a defendant to be a witness cannot in any manner prejudice him or be used against him on the trial, it is not ground for reversal that the prosecuting attorney merely told the jury that the person they were trying was not W. (indicted with defendant) who took the stand, but F., the defendant, who did not take the stand, as to which fact he was not permitted to comment and should say nothing; the court having then also told the jury that it was the legal right of defendant to remain silent, and that no presumption should be indulged in against him because of his failure to take the stand.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1672.]

4. SAME MATTERS NOT SUSTAINED BY EVIDENCE.

W., indicted, but not tried, with defendant, having testified that, when they arrived at a certain place, the evening after they were claimed to have committed the offense, they met a fellow named Gilluly, the mere statement of the prosecuting attorney that defendant on reaching such place the evening after the assault "met the Gilluly gang-the Gillulys are well known in Santa Rosa"-is harmless, though there was no evidence of their being so known.

Appeal from Superior Court, Marin County; T. J. Lennon, Judge.

Terence Fitts appeals from a conviction. Affirmed.

Ross Campbell, for appellant. U. S. Webb, Atty. Gen., for the People.

HARRISON, P. J. The defendant was indicted for an assault with intent to commit robbery, and upon the trial thereof was convicted and sentenced to a term in the state prison. From this judgment and an order denying his motion for a new trial he has appealed.

It was shown by the testimony of the

prosecuting witness that between the hours of 2 and 3 o'clock in the morning of December 6, 1905, he was addressed from the outside of his cabin on the Greenbrae drawbridge, and on opening the door a little way he was seized by the throat and dragged outside by a man named Woods, and that the defendant thereupon went through his pockets; that they went inside the cabin, and the defendant, after throwing its contents into confusion, came outside, and while holding the witness tight in his grasp demanded with a threatening gesture that he give up his sack of gold; that thereupon he was pulled around by Woods and struck upon the temples, by which he was rendered unconscious for about two hours. Woods, who was a witness for the defendant, testified that he and the defendant were together during the whole of the night of December 5th in a box car behind the freighthouse in San Rafael, and that neither of them was at any time that night at Greenbrae, or on the Greenbrae drawbridge.

1. One of the grounds urged in support of the appeal is the refusal by the court to instruct the jury, as requested by the defendant, that the charge in the indictment embraces two offenses; that is, an assault with intent to commit robbery, and an assault which is commonly termed a simple assault. The only evidence before the jury of the assault by the defendant was that of the prosecuting witness, and, if the jury believed his testimony, the defendant made no assault upon him except in connection with his attempt to commit robbery. The testimony of the witness Cleary, upon which the appellant claims the right to this instruction, did not purport to describe the occurrence, but was merely a statement of what the prosecuting witness had told him. If the testimony of Woods should be believed by the jury, there was no evidence of even a simple assault on the part of the defendant. Under the evidence before them the only verdict which the jury could render was either one of guilty as charged in the indictment or of acquittal. The court was therefore justified in refusing the instruction, upon the ground that there was no evidence before the jury to which it could refer. People v. Chavez, 103 Cal. 407, 37 Pac. 389; People v. Lopez, 135 Cal. 23, 66 Pac. 965; People v. Swist, 136 Cal. 520, 69 Pac. 223.

2. The court instructed the jury: "If any of the witnesses examined before you have willfully sworn falsely as to any material matter, it is your duty to distrust their entire testimony." It is contended by appellant that by this instruction the court violated the constitutional inhibition against charging the jury with respect to matters of fact. While it is held that in so far as the statute "requires" such an instruction to be given it is unconstitutional, it is at the same time said that the giving of such instruction will not be held to be reversible error, since

by it the jury are instructed as to mere commonplace tters within their general knowledge. People v. Wardrip, 141 Cal. 229, 74 Pac. 744.

3. The witness Woods was indicted jointly with the defendant, but the defendant was separately tried, and Woods was a witness in his behalf. In his closing argument to the jury the district attorney, while commenting upon the testimony, said to them: "You are trying the defendant Fitts and not Woods, and we have shown that he (Fitts) is the one that ran his hand in Feliz Sands' pocket, and I don't want you gentlemen of the jury to become confused as to which is the person on trial in this action and whose case you can alone consider. The codefendant Woods, the one who took the stand, is not the defendant on trial. The person on trial is the defendant Fitts-the one who did not take the stand. I am not permitted to comment on his failure to take the stand, nor shall I say anything about that." The attorney for the defendant objected to his reference to the fact that the defendant did not take the stand, and the court thereupon instructed the jury that it was the legal right of the defendant to remain silent, and that they were to indulge in no presumption against him because of his failure to take the stand in his own behalf.

It is contended by the defendant that the above remarks of the district attorney are in violation of section 1323 of the Penal Code, and constituted misconduct' on his part for which the verdict should be set aside. Section 1323 declares that the neglect or refusal of a defendant to be a witness "cannot in any manner prejudice him or be used against him on the trial or proceeding." We are of the opinion that the above reference of the district attorney to the defendant was for the purpose of directing the attention of the jury to testimony which particularly affected him rather than Woods, and cannot properly be considered as indicating a purpose on his part to "use" against the defendant the fact of his not being a witness. The section does not declare that no reference to such fact shall be made, or that any reference, however innocent or inadvertent, shall be a ground for setting aside the verdict. It is only when the fact is "used against" the defendant that such result should follow. There is an expression in an opinion given by the court for the Third appellate district in People v. Morris (Cal. App.) 84 Pac. 463, to the effect that "it is error to allude in any way to the fact that the defendant had refrained from testifying." which may have been proper if limited in its application to the language of the counsel which was used in that case, wherein the fact was directly "used against" the defendant; but, if intended as the declaration of a rule or a construction of the provision in the section, it is an enlargement of the language of the statute which in our opinion is unauthorized.

Misconduct on the part of the district attorney is also assigned for another remark in his argument to the jury. Woods in his testimony stated that after they had reached Santa Rosa on the 6th of December they "met a fellow named Gilluly"; and, in addressing the jury in reference thereto, the district attorney said, "The defendant, on reaching Santa Rosa the evening after the assault, met the Gulluly gang-the Gullulys are well known in Santa Rosa." The proposition of the appellant that these remarks were prejudicial to him is submitted without any argument. No reference is made therein to the charge upon which the defendant was tried; and, while there was no evidence before the jury that the Gullulys are well known in Santa Rosa, it is evident that their verdict could not have been affected by this statement.

The judgment is affirmed.
We concur: HALL. J.;
HALL. J.; COOPER, J.

(29 Nev. 451) BERRY et al. v. EQUITABLE GOLD MINING CO. (No. 1,708.)

(Supreme Court of Nevada. Sept. 4, 1907.) 1. APPEAL — RECORD — FILING ORIGINAL -COPY. Two duplicate volumes entitled "statement on appeal" in the handwriting of the clerk of the district court were filed September 8, 1906. They were identical, except that one of them was indorsed "copy," and this instead of the original was the one that was settled by the district judge. Held, that the certification and settlement of the copy instead of the original was not a fatal defect, but that the copy could be considered as an original.

2. SAME-MOTION TO DISMISS-TIME.

A second motion to dismiss an appeal on grounds not previously urged, not made before the day of the hearing, nor until after respondent had filed his brief, was too late.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3149.]

3. JUDGMENT-ORDER FOR JUDGMENT-EXCEPTION-TIME OF TAKING.

Where no order was made directing the entry of judgment at the time a verdict was rendered, but defendant's counsel took an exception as soon as a nunc pro tunc order was made, and he became aware of the direction that judg ment be entered, the exception was in time. 4. APPEAL JUDGMENT ROLL CONTENTS — SUMMONS.

The summons is not an essential requisite of a judgment roll to sustain an appeal, where the judgment was rendered after trial at which defendant appeared.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2284.]

5. JUDGMENT-ENTRY BY CLERK-AUTHORITY. A decree for a perpetual injunction entered by the clerk was void on its face, where it was unsupported either by the verdict rendered or by an order of the judge directing its entry. [Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment. § 506.]

6. TRIAL-GENERAL AND SPECIAL VERDICT.

Where there is a general and a special verdict, if either has force, the latter controls. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 857.]

upon the verdict, and that it attempted to grant relief by perpetual injunction, which under the statute he was not authorized to give. It is not signed by the judge, and contains no reference to any order of the court. If the order entered nunc pro tunc be considered, it directs the entry of the judgment in accordance with the verdict, without specifying the general or special verdict.

For respondents it is argued that they had a constitutional right to a jury, and were entitled to the result of the verdict and to have a judgment entered upon it by the clerk. If this were true, and the case were not one in equity (Duffy v. Moran, 12 Nev. 97), still neither the verdict nor the order of the judge directs the entry of the decree for perpetual injunction which was made by the clerk. Consequently, and too clearly for argument. this judgment shows upon its face that it is void and cannot be sustained upon any legal principle, because it was entered by the clerk, a ministerial officer who could not act judicially in this regard and who was not directed to enter such decree by any order of the court, and was not, and could not have been. authorized to enter it by the verdict of the jury. On a motion for that purpose the court could have set aside this decree as having been inadvertently entered by the clerk and unauthorized, and the appeal is properly from his order in that regard and from the judgment as presented with the papers essential to be brought here in the judgment roll.

As the plaintiffs base their claim upon an appropriation alleged to have been made by Shepard, they are limited to the amount which was beneficially used by him. The jury found that this was 10 gallons for mining and 10 gallons for domestic purposes each

day. Where there is a general and a special

verdict, if either has any force, the latter controls. If the jury desired to give the plaintiffs all the water flowing from the spring or more than 20 gallons per day because they found that their grantor Shepard had used that quantity, nevertheless the law would limit the right to the amount beneficially appropriated. By directing judgment in accordance with the verdict, it may be assumed that the district court approved of the finding of the jury and found in favor of an appropriation by Shepard to the extent of at least 20 gallons per day. The defendant complains because the decree was not modified so as to allow the plaintiffs this quantity. The judgment being void because its nature was such that its entry was unauthorized by the clerk, the condition of the case is not so materially different than it would be if no decree had been entered. At least, with the consent of the parties, the findings may be considered a correct determination of the facts and as warranting the entry of a proper decree upon them by the district court, even if the judge who tried the case

has been succeeded in office. Jerrett v. Mahan, 20 Nev. 90, 17 Pac. 12.

Respondents' motions to dismiss the appeal are denied, the judgment is set aside, and, if within 20 days after filing of the remittitur the plaintiffs file their written consent that judgment be entered in favor of them for the use of 20 gallons per day of the water of the spring in controversy and for costs of suit and for a perpetual injunction restraining defendant and its agents and employés from interfering with the free use by the plaintiffs of that quantity of the water per day, a decree will be so entered by the district court, but otherwise a new trial will be had.

SMITH, J. All the questions raised by the defendant in error in his petition for a rehearing were considered and determined adversely to him before the decision was handed down. It may be well, however, to state more clearly the ground upon which the first paragraph of the syllabus is based, as it seems to be misapprehended.

It is conceded that a district judge should make no order allowing an injunction until a suit for an injunction has been commenced in his court. A suit is commenced by filing a petition and causing a summons to be issued thereon (Code, § 57; Gen. St. 1901, §

4487), and, when an injunction is allowed at

the commencement of the suit, the clerk should indorse upon the summons "injunction allowed" (Code. § 243; Gen. St. 1901, § 4690). Thus it appears the summons should Issue before the making of the order, and the order should be made before the issuance of the summons. The difficulty is usually overcome by first filing the petition, then procuring the order, and then procuring the issuance of summons with the indorsement. This solution, however, is more apparent than real.

The contention that there was a defect of parties defendant in railing to join the judgment creditor with the sheriff was not overlooked, although not mentioned in the decision. The judgment creditor was a proper party, but was not a necessary party. He could make any defense he had through his agent, the sheriff, or, if he had desired, he could have asked, by motion, to be made a party, and such application, in the discretion of the court, could have been allowed. The sheriff, however, could have made any defense which he and the creditor, jointly or

severally, could have made. Hence the creditor was not a necessary party. Taylor v. Hosick, Adm'r, etc., 13 Kan. 518, 526.

The petition for a rehearing is denied. All the Justices concurring.

(51 Or. 457)

SANBORN v. FITZPATRICK et al. (Supreme Court of Oregon. Sept. 3, 1907.) 1. APPEAL-BOND - JUSTIFICATION OF SURE

TIES.

were introduced in evidence were not filed with the clerk of the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2318.]

Appeal from Circuit Court, Clatsop County; Thomas A. McBride, Judge.

Action by George W. Sanborn against Nora Fitzpatrick and others. From a judgment in favor of plaintiff, defendants appeal. On motion to dismiss the appeal and to strike from the files the evidence taken in the trial court and exhibits. Denied.

fied in that sum.

2. SAME-REPORT OF EVIDENCE-REPORTER'S CERTIFICATE.

Where the evidence was taken in shorthand by an official reporter, whose duty it was to report the entire proceedings, a certificate to the reporter's transcript that it was a full, true, and correct transcript of the shorthand notes taken at the trial and of the whole thereof should be construed as certifying that it included the entire proceedings had at the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2698, 2699.] 3. SAME-RECORD-IDENTIFICATION BY JUDGE.

B. & C. Comp, § 827, provides that in suits in equity which have gone to a decree the trial judge shall identify the testimony and exhibits within 10 days thereafter, and that, where the evidence is taken by a stenographer, he shall extend the same and certify to its correctness, and that all documentary evidence shall be preserved and incorporated in the report of the evidence by the referee. Held, that the evidence is only required to be identified by the judge when the case is tried before a referee, and, on a trial before the court, the transcript of the evidence is to be certified by the stenographer.

4. SAME-CERTIFICATION OF EXHIBITS.

B. & C. Comp. § 827, requires the testimony to be certified by the official stenographer where the case is tried before the judge and a stenographer, and B. & C. Comp. § 553, and Supreme Court Rule 1 (91 Pac. vii), declare that. when an appeal is from a decree, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence offered at the trial, and deliver the same to appellant, taking his receipt therefor in duplicate, which depositions, exhibits, and other papers may be certified by the clerk. Heid that, where the case is tried before the trial judge and an official stenographer, the exhibits may be properly certified by the clerk without a certificate from the trial judge or the reporter.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2714.]

5. SAME-FORM OF RECORD.

B. & C. Comp. § 553 (Supreme Court Rule 1 [37 Pac. v]), providing that, where an appeal is taken from a decree, the clerk shall attach together the testimony, depositions, and other papers on file in his office containing the evidence, etc., in so far as it requires the evidence and exhibits to be bound in a single volume, is directory only, so that it is not a fatal defect that the pleadings, exhibits, and evidence are bound in separate volumes held together by rubber bands.

6. SAME-FILING EXHIBITS.

It was no objection to the sufficiency of an appeal record that the exhibits which were properly identified by the stenographer as they

This is a motion to dismiss the appeal, accompanied, in the same instrument, with a motion to strike from the files all of what

below, including the exhibits. The motion to strike is urged on the ground that (1) it does not appear that any of the exhibits were received in evidence, nor the documents purporting to be the exhibits are all the exhibits introduced in evidence at the trial; (2) that the exhibits are not attached to, nor form any part of the testimony; (3) that they are not properly identified; (4) that the exhibits were not filed in the office of the clerk of the county where the cause was tried; (5) that the volume purporting to contain a transcript of the shorthand reporter's notes of the proceedings is not properly certified, in that it does not appear from the certificate of the official reporter that the transcript certified to contains all the testimony, evidence, and proceedings had at the trial; and (6) that all the exhibits and documents are not attached to nor made a part thereof. The certificate to the testimony filed is as follows: "State of Oregon, County of Clatsop-ss.: I, Charles E. Runyon, official reporter of the Fifth Judicial District of the State of Oregon, do hereby certify, that the above and foregoing is a full, true and correct transcript of my short hand notes taken at the trial of the above-entitled cause, and of the whole thereof. Witness my hand this 29th day of January, 1907. Chas. E. Runyon." The exhibits are bound in a separate volume, and have affixed thereto the following certificate: "State of Oregon, County of Clatsop-ss.: I, J. C. Clinton, county clerk in and for said county and state, and clerk of the circuit court in and for said county, hereby certify that the hereto attached Exhibits marked 'Plaintiff's Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, and Defendants' Exhibits A, B, C, D, E, F, G, H, I, K, L, M, N. P.' are the original exhibits offered on the trial of the case of George W. Sanborn, Plaintiff, vs. Nora Fitzpatrick. E. M. Linden and Robert J. Linden, Defendants, in the above-entitled court. In testimony whereof I have hercunto set my hand seal of said circuit court this 31st day of May, A. D. 1907. J. C. Clinton, Clerk of Circuit Court. [Official Seal.]" The motion to dismiss alleges that the undertaking on appeal limits the liability therein to $500. for which reason a dismissal of the appeal is demanded.