will be found on pages 248, 249. The consolidation act of the city and county of San Francisco will (so far as the present question is concerned) remain in force until changed or superseded by proceedings under article 11 of the constitution.

Judgment affirmed.

We concur: THORNTON, J.; SHARPSTEIN, J.; Ross, J.; McKinstry, J.; MORRISON, C. J.

(65 Cal. 107)

PEOPLE v. RILEY. (No. 10,876.)

Filed March 17, 1884.

An order of commitment being made after examination, the transcription of the notes of the short-hand reporter is not essential to the jurisdiction of the court in order to proceed by information.

The decision upon a challenge for actual bias is not the subject of review on appeal.

The restriction by the court of the number of the defendant's peremptory challenges to 10 was proper, under the decision in People v. Clough, 59 Cal. 438. Where the defendant is convicted of robbery, an error in the charge relating to the crime of grand larceny is not properly before this court.

In bank.

The Attorney General, for respondent.

Lyman J. Mowrey, for appellant.

MORRISON, C. J. The defendant was informed against in the superior court of the city and county of San Francisco, and on the trial was found guilty of the crime of robbery. On his appeal several errors were assigned, which we will briefly consider in their proper order:

First. It was claimed, on motion to set aside the information, that the trial court had no jurisdiction, and this pretension is based on the ground that there were no such preliminary proceedings in the case as to warrant a prosecution by information. We think this point is not well taken. It appears that a preliminary examination was had before a committing magistrate, and that at such examination the evidence was all taken down by a short-hand reporter, in pursuance of of an order of the court, but that the short-hand notes were not transcribed and filed with the court or the clerk thereof. In our opinion such transcription was not necessary to the jurisdiction of the court. The substance of the requirements of the constitution and statute was complied with. An examination was had and an order committing the defendant was made. The defendant could have had

a transcription of the short-hand notes if he had desired it, but he was not prejudiced in any substantial right by the failure of the short-hand. reporter to write out his notes; and such transcription was not essential to the jurisdiction of the court. Const. art. 1, § 8. The district attorney was not obliged to wait until the short-hand notes were written out and filed before proceeding by information. Penal Code, § 809, sub. 5; section 809.

Second. The next alleged error relates to the action of the court in overruling defendant's objection to the juror Eastland, who was challenged for actual bias. Such a decision is not the subject of review on appeal, as has been frequently held by this court. People v. Cotta, 49 Cal. 166; People v. Vasquez, Id. 560; People v. Taing, 53 Cal. 602.

Third. The next objection raises a point frequently decided by this court, and fully settled so far as judicial decisions can settle any question. The mode of selecting a jury in a criminal case was clearly stated in the case of People v. Scoggins, 37 Cal. 676, and has been followed in People v. Russell, 46 Cal. 121, and also in People v. Iams, 57 Cal. 125. We are satisfied with the principle enunciated in the foregoing cases.

Fourth. As to the number of peremptory challenges to which the defendant was entitled. He claimed that he had a right to 20, but the court restricted him to 10. This was in accordance with the ruling of this court in People v. Clough, 59 Cal. 438, and to the ruling in that case we adhere.

Fifth. The last error relied upon, which we will notice, challenges the correctness of certain portions of the judge's charge to the jury. It may be conceded, for the purposes of the argument, that there was error in the charge, so far as the same related to the crime of grand larceny; but the defendant was convicted of the crime of robbery, and what the court said about that crime is properly before this court. The crime of robbery was defined by the court in the very language of the statute, and the objection to the charge is rather hypercritical than substantial. There is no such inconsistency in the charge as would justify this court in interfering with the judgment below. On the question of reasonable doubt the charge was strictly correct; and, in conclusion, we find no substantial error in the case. Judgment and order affirmed.

We concur: MYRICK, J.; THORNTON, J.; SHARPSTEIN, J.; McKINSTRY, J.; Ross, J.

(31 Kan. 521)

SUPREME COURT OF KANSAS.

BROWN v. CLARK, Adm'x, etc.

Filed March 6, 1884.

A proceeding in error to reverse a judgment of the district court must be commenced within one year after the rendition of the judgment; and when the judgment was in fact rendered August 24, 1881, but not entered upon the journal until December 19, 1882, at which time a nunc pro tunc entry was, on motion and notice, ordered and made, showing the judgment as of date of August 24, 1881, held, that a petition in error to reverse such judgment, filed in this court December 10, 1883, is not within time, and must be dismissed.

Error from Marshall county.

W. H. H. Freeman, for plaintiff in error.

B. Giltner, for defendant in error.

BREWER, J. A motion is made to dismiss this case on the ground that the petition in error was not filed in this court within one year after the rendition of the judgment complained of. The petition in error was filed December 10, 1883. The trial, verdict, and judgment were on August 24, 1881. There was, however, no journal entry made of these proceedings at that time, but on December 19, 1882, upon motion and notice, the court made an order directing a nunc pro tunc journal entry of the proceedings, including the judgment as of the date, August 24, 1881. The motion which was filed for this journal entry stated that on the judge's docket these facts of trial, verdict, and judgment were all minuted. The evidence which was offered in support of this motion is not preserved. No exceptions were taken to the order of the court, so that its correctness cannot be questioned. The case, therefore, stands before us upon the simple facts of dates as above stated. The statute provides (Laws 1881, p. 229, § 2) that "no proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment, or making of the final orders complained of." Under this statute the plaintiff in error is too late. The petition in error must be filed within one year after the rendition of the judgment; not within one year after the time a journal entry thereof is in fact made. Now, the judgment was rendered in August, 1881. That, according to the record, must be accepted as unquestioned. But the petition in error was not filed until December, 1883. The motion to dismiss must be sustained.

(All the justices concurring.)

Where a person files a complaint in writing before a justice of the peace, charging that a defendant has committed an assault and battery upon him, and the justice afterwards discharges the defendant upon the ground that the complaint does not charge an offense, he has no authority to commit the complainant to jail until the costs are paid, or render judgment against him for costs upon the ground that the complaint was without probable cause.

Original proceedings in habeas corpus.

T. S. Hann, for petitioner.

W. S. Kenyon, for respondent.

HORTON, C. J. It appears in this case that on February 13, 1884, John Stoneberger filed with A. STEVENS, a justice of the peace of Hodgeman county, a complaint against D. M. Jessup, alleging that the latter had committed an assault and battery upon him. Jessup was arrested and brought before the justice to answer the complaint. He demanded an immediate trial, which the justice refused, and granted a continuance until February 19th following. On February 19, 1884, the defendant obtained a change of venue, and the cause was sent to J. D. MACKAY, another justice of the peace of the county, for trial. When the case was called before MACKAY a motion was made by the defendant, Jessup, to discharge him, upon the ground that the complaint did not charge any offense. This motion was sustained, and thereupon the defendant was discharged. The defendant's attorney then asked that the costs be taxed against the complainant, whereupon the latter made a verbal statement, and the defendant, Jessup, also made a verbal statement. Neither of the statements of the parties was under oath. Thereupon the justice made a finding that the complaint was without probable cause, and rendered judgment against the complainant for all the costs, and ordered him committed to the jail of Ford county until the costs were paid. The complaint was sufficient for the trial of the defendant for assault and battery. The statement of the defendant in court showed that he was guilty of the charge made against him. The judgment of the justice against the complainant for costs, and committing him to jail, was without authority of law, and void. There is no statute authorizing a justice to adjudge costs against a complainant, in a criminal proceeding before him, where the complaint is disposed of by a motion to discharge the defendant, on the ground that no offense is charged therein. Section 19, c. 83, Comp. Laws 1879; State v. Menhart, 9 Kan. 98; State v. Campbell, 19 Kan. 481; State v. Dean, 24 Kan. 53; Bonney v. Van Buren Co. 2 Greene, (Iowa,) 230. The petitioner will be discharged.

(All the justices concurring.)

SUPREME COURT OF NEVADA.

(18 Nev. 286)

STATE ex rel. BARNETT v. FIFTH DISTRICT COURT, NYE Co.

Filed March 21, 1884.

Where an appeal is taken from the judgment rendered in a justice court, and, pending the appeal in the district court, the debtor is adjudged insolvent by the district court of another county, a motion to stay proceedings, without a proper showing of the adjudication of insolvency, or of the order staying proceedings issued therein, does not divest the district court to which the appeal is taken of its authority to proceed so as to make its subsequent action void.

The district court is not bound to take judicial notice of the proceedings of the district court of another county; and a disregard of an adjudication of insolvency there made, even if properly proven, would amount to no more than error.

By dismissing the appeal taken hercin, the district court divested itself of authority to proceed further, except to include costs on dismissal. District courts have no power to impose damages for frivolous appeals, nor to directly, and without trial, reverse or affirm judgments brought by appeal from justices' courts. Such cases must be tried anew.

Application for writ of certiorari.

L. D. King, for relator.

D. S. Truman, Dist. Atty., for respondent.

BELKNAP, J. Brennan recovered judgment against Raphael in the justice's court for the sum of $228.50 and costs, upon a moneyed demand. Raphael appealed to the district court. The case was called for trial upon the twenty-seventh day of July, whereupon counsel for appellant moved a stay of proceedings upon the ground that since the appeal had been taken his client had been adjudged an insolvent, under the insolvency laws of the state, by the Seventh judicial district court. The motion was denied because of the incompetency of the evidence by which the fact was sought to have been established, the only evidence being a printed slip, presumably taken from the newspaper in which the order for the meeting of creditors was published, as provided in section 8 of the act for the relief of insolvent debtors. St. 1881, p. 125. A motion to dismiss the appeal was then made and sustained, and the case dismissed. Subsequently the court took under advisement a motion for judgment for damages and costs, and two days thereafter sustained this motion, awarding plaintiff 10 per cent. of the amount of the judgment rendered by the justice as damages. Judgment was accordingly entered dismissing the appeal, affirming the judgment of the justice, with the damages sustained by reason of the appeal, and costs. Certiorari is brought

for the purpose of reviewing these proceedings.

v.3,no.5-27