Where a contract required plaintiff to grade certain land in accordance with a specified grade, evidence was inadmissible to show that the term "grade" as used in the contract had by custom of business no other construction than to require plaintiff to take off the earth from the high places, and with it fill in the low places to the extent of the material within the lines of the work. 6. APPEAL-ADMISSION OF EVIDENCE-HARMLESS ERROR.

Where, in a suit on a contract to grade certain land, the court found that there was sufficient dirt on the ground to bring the land to the precise grade fixed in the contract, defendant was not prejudiced by evidence that the term "grade" as so used only required plaintiff to take off the earth from the high places, and with it fill in the low places to the extent of the material within the lines of the work, and did not require him to haul dirt onto the property from outside.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4153-4160, 41714177.]

7. SAME-DAMAGES.

Where, in an action on a grading contract providing a fixed sum as liquidated damages for delay, no issue was presented as to the amount of the liquidated damages or claim on account thereof, and the court found that the contract had been substantially performed, there was no room for an inquiry as to damages, and hence defendant was not prejudiced by the exclusion of a question as to the extent of his injuries by plaintiff's failure to complete the work.

8. MECHANICS' LIENS-FORECLOSURE-ATTORNEY'S FEE.

An attorney's fee cannot be allowed in the foreclosure of a mechanic's lien though provided for by statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, § 653.]

Appeal from Superior Court, Los Angeles County; G. A. Gibbs, Judge.

Action by James A. Hill against Stephen A. D. Clark and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

M. W. Conkling and J. L. Fleming, for appellants. H. L. Dunnigan, Haas, Garrett & Dunnigan, and Borden & Carhart, for respondent.

ALLEN, P. J. This is an appeal from a judgment, the evidence taken at the trial being presented in a bill of exceptions. The action was one brought by plaintiff to foreclose a lien on account of certain work and labor performed in grading a tract of land

under a written contract with defendant, the owner. This contract specified the exact lines of grade to which the premises should be brought, and for which work the plaintiff was to receive $1,000 upon completion. Upon the trial the plaintiff did not show that he had complied with the contract in any manner other than as required by his construction thereof, which was that, when he had taken off the earth from the high places, and with it filled in the low places to the extent of the material within the lines of the work, he had done all that was required of him by the contract; and the court permitted plaintiff, under objections, to introduce testimony tending to show that the word "grade," as used in the contract, had by the custom of business no other construction than that given it by plaintiff; that by the use of the word "grade" in the contract it was never intended to require that dirt should be hauled from the outside. At the conclusion of the plaintiff's testimony defendants moved for a nonsuit upon the ground that the plaintiff had failed to show that the contract set out in the complaint had been substantially fulfilled or completed, which motion was denied, with an exception. Thereupon defendants introduced testimony tending to show the extent to which the work had been done and the amount of labor and expense incident to its entire completion; and plaintiff was permitted to introduce testimony in rebuttal in connection with such question of completion and cost.

At the conclusion of the testimony, the court filed its findings of fact, wherein it found that plaintiff furnished and performed the labor agreed to be furnished and performed, and substantially performed said contract according to its terms; that in the performance of said contract plaintiff failed to grade the property exactly to conform to the lines specified in said contract; that plaintiff endeavored in good faith to perform said contract; that defendants would not permit plaintiff to cut certain high places to the specified grade, which, had he been permitted so to do, would have provided sufficient dirt on the property to bring the entire property to the grade specified in said contract; that plaintiff failed to bring in dirt to fill up the low places on said property; that the defect is one that can be remedied, and the damage caused by the failure of plaintiff to bring in dirt, including the cost of supplying the deficiency, amounts to the sum of $150; that such sum would correct the work done by said contractor to make it conform to the contract aforesaid. And, as a conclusion of law, the court found that plaintiff was entitled to judgment for $650, being the amount of the contract price less a payment of $200 theretofore made and the $150 necessary to an entire completion of the contract, together with $2.45 paid for verifying and recording the claim of lien and $50 for attorney's fees; and a decree for the sale of the property in

the ordinary way on default in the payment of such judgment. The findings are not attacked by any specifications of error relating to insufficiency of evidence for their support. The principal contention of defendant upon this appeal is that the judgment should be reversed because of the action of the court in denying the motion for nonsuit. In a former opinion filed in this case this court reversed the judgment of the trial court upon the ground that such motion for nonsuit should have been granted. Upon a rehearing of the case, however, we are satisfied that we overlooked the effect which should be given the findings of fact. While it is true that the court would have been warranted in granting the motion for nonsuit when made, yet sufficient appears in the record to show that the omission of the requisite proof upon the part of plaintiff in the first instance was supplemented by subsequent evidence properly received upon the trial; and, under the well-established rule, such subsequent proof will have the effect to cure the error in denying the original motion. The rule is well established that in cases of this character the performance of a contract need not in all cases be literal and exact in order to entitle a plaintiff to compensation therefor; that a substantial performance is all that is required. Harlan v. Stufflebeem, 87 Cal. 512, 25 Pac. 686. "Whether the contract has been substantially performed is a question of fact which must be determined by the trial court in each instance from the facts and circumstances in that case, and the finding of the trial court upon that point is as conclusive as is its finding of any other fact." Schindler v. Green, 149 Cal. 755, 87 Pac. 627. The findings not being challenged as unsupported by the evidence, we must, therefore, accept the same as conclusive upon the question of good faith and substantial completion. While findings of fact are not proper on a motion for nonsuit, yet, under the circumstances of this case, in determining whether or not the subsequent proof has supplied any omission in the plaintiff's testimony, we may look into the findings to determine that fact, rather than into the evidence in the bill of exceptions to see whether or not those findings have support, other than to see whether or not there is some evidence tending in that direction. In the light of subsequent events, therefore, there was no prejudicial error in denying the motion for nonsuit.

It is further insisted by appellant that the court erred in admitting the testimony of witnesses as to the construction to be given the word "grade" in a contract where the same specifically states the exact grade to which the property should be brought. We quite agree with appellant in this regard. There was no room for construction. The contract was specific as to the lines to which the grade should be brought; but, looking again into the findings we see that the court

finds that there was sufficient dirt on the ground to bring the property to the precise grade fixed in the contract. Hence, the evidence offered as applicable to cases where there was an insufficiency of earth could not prejudice defendant in this case.

We perceive no error in the action of the court sustaining the objection to a question asked defendant, as follows: "Can you state to the court how much and to what extent you have been injured by the failure of the plaintiff to complete this work; the question is, can you tell?" The contract provided for a fixed sum as liquidated damages for delay in the completion of the work beyond the time specified in the contract. No issue was presented as to the amount of the liquidated damages, or claim on account thereof, and the question objected to could have no reference thereto; and the court finding that the contract was substantially completed there was no room for inquiry as to the damages, and no prejudice could result to defendant from such ruling.

The appeal from the judgment, however, presents the question involved in an allowance of attorney's fees. In Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 Pac. 982, it is held that an attorney's fee cannot be allowed in the foreclosure of a mechanic's lien, even though provided by statute. The same reasons which impelled that decision are applicable here, and the court erred in awarding an attorney's fee.

The judgment of the superior court is therefore modified by striking therefrom the words "and for the further sum of $50 hereby allowed said plaintiff for attorney's fees in this action"; and, as so modified, is ordered affirmed, appellant to recover costs on appeal.

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

(7 Cal. App. 629) PEOPLE v. FOSSETTI. (Cr. 82.) (Court of Appeal, First District, California. March 3, 1908.)

1. HOMICIDE-TRIAL-QUESTIONS FOR JURY

PASSION.

In a prosecution for murder, the result of a quarrel, where the evidence showed that deceased had been drinking and had exhibited no weapon, and made no threat toward defendant, and that defendant deliberately left the room after saying that he would "fix" deceased, procured a pistol, returned, and without warning fired the fatal shot, the jury were the exclusive judges of the facts, and it was for them to say whether the killing was the result of malice or premeditation, or whether it occurred during a sudden quarrel or heat of passion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, § 565.]

2. SAME-MURDER-DELIBERATION AND PRE

MEDITATION.

Where the deceased and defendant were quarreling, and the deceased struck defendant, after which defendant left the room, procured a pistol, returned, and shot the deceased, no definite time was necessary after defendant was struck for his angry passion to cool so as to

make the killing a murder, and not manslaughter.

[Ed. Note. For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 62-64.]

3. CRIMINAL LAW-APPEAL-REVIEW QUESTIONS OF FACT-SUFFICIENCY OF EVIDENCEDEGREE OF CRIME.

The question as to the sufficiency of the evidence and as to the degree of a crime, where an inference may be properly drawn from the facts, is peculiarly a question for the jury, with whose determination it is not the province of the appellate court to interfere.

[Ed. Note. For cases in point. see Cent. Dig. vol. 15, Criminal Law, §§ 3074-3083.]

4. SAME-OPINION EVIDENCE-FACTS OR CON

CLUSIONS.

In a prosecution for murder, a physician was asked by the prosecution to state the course of the bullet from its entrance to where it struck a bone, where it was changed out of the course it had first taken. Held, that the court did not err in permitting the witness to answer the question; its purpose being to show the jury the position of the wound and the course taken by the bullet, and not to secure an opinion with regard to the relative position of the parties.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1034-1036, 1062, 1063.]

5. SAME TRIAL-ARGUMENT OF COUNSEL-INSTRUCTIONS AS TO DUTIES OF JURY.

In a prosecution for murder, the court did not err in refusing to strike out the district attorney's argument to the effect that instructions were prepared by counsel, and often stated hypothetical circumstances and conditions which made it necessary for the jury to look at them carefully and critically.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1680.]

6. SAME-APPEAL-ASSIGNMENT OF ERrors.

On appeal from a conviction of murder, defendant assigned as error that an examination of the instructions refused would show that there seemed to have been a steady pressure in the lower court to bar out any verdict of manslaughter or acquittal, and that, if any of such instructions were refused on the ground that they had already been given, that reason should have been stated by the court. Held, that the assignment was not sufficient to justify the appellate court in examining the instructions; it being due to the court that, when counsel rely upon error in the refusal to give an instruction, they should state the instruction, and point out the reason why they think the court erred in refusing to give it, which rule also obtains in regard to the giving of an instruction to which objection is made.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2954-2964.]

Appeal from Superior Court, Fresno County; Geo. E. Church, Judge.

Joseph C. Fossetti was convicted of murder in the second degree. From the judgment and the order denying a new trial, he appeals. Affirmed.

A. J. Hinds and Thos. D. Ingersoll, for appellant. Webb, Atty. Gen., for the People.

COOPER, P. J. The defendant was found guilty of murder in the second degree by the verdict of the jury, and upon the verdict judgment was duly entered. His motion for a new trial having been denied, he prosecutes this appeal from the judgment and from the order denying his motion for a new trial.

The main point urged by the defendant is

95 P.-25

that the evidence shows that the crime was manslaughter, and not murder. It appears from the evidence in the case that the defendant (who is sometimes referred to as Chip Moran), was in charge of a roadside house near Fresno; that one Ollie Leighton was living at the place, and one Hattie Russell, at the invitation of Ollie Leighton, was visiting the roadside house referred to; that Moseley, the deceased, was a friend of Hattie Russell, and called upon her at the roadside house while she was stopping there, and that he with her had partaken of a meal at the house; that on the date of the homicide, about 6 o'clock p. m., defendant and other persons returned to the roadhouse, and soon thereafter defendant went into the kitchen. De ceased went into the room of Hattie Russell. He had been drinking. Defendant was called into the room of Hattie Russell where deceased was, and deceased then stated that defendant had accused Hattie Russell of haying been out riding with deceased, and stated to defendant that defendant had told him so and had made said accusation. Angry words ensued, during which time defendant called Moseley a liar, and Moseley struck defendant on the cheek, and knocked him over on the bed. Defendant then went out and procured a revolver, and came back into the room and fired the fatal shot. The transaction is thus stated by the witness Hattie Russell: "There was just one blow struck. There was nothing more happened in the way of their scuffling, striking, kicking, or anything. When I got Barney (referring to Moseley) off, we were at the foot of the bed there. Chip Moran got up from the bed on the side next to the door and went out. I don't remember whether he got up on his feet or his knees, because as soon as I pulled Barney up he got right up and got out. Chip (the defendant) said that he would fix him just as he was going out the door. Nothing happened before he came back. I was just talking with Barney Moseley, trying to keep the peace with him. We were standing by the bureau, and Chip came in, and I heard him coming around, and I shut the door, and he slammed it back and shot. He was down the hall from the back way when I heard him coming. He didn't say a word when he came back to the door and shot. The bureau was where it was shown there [referring to a diagram], and Barney was leaning on it when the shot was fired. Chip was in the door when he fired the shot. From the time Chip Moran went out of the door and says 'I'll fix you' till the shot was fired was inside of a minute. When the shot was fired, Barney fell; just slipping down from the bureau into a cramping position." It is contended that the above testimony, although it does not show that the fatal shot was fired in self-defense, shows that it was fired during a sudden quarrel or heat of passion, and, at most, only constituted the crime of manslaughter. This contention cannot be maintained as a proposition of law. The de

ceased had been drinking. He had exhibited no weapon, and made no threat toward the defendant. The defendant deliberately left the room, according to the testimony, after saying that he would "fix" deceased. He procured a pistol and returned, and, without warning, fired the shot that caused the death of Moseley. In such case the jury are the exclusive judges of the facts, and it is for the jury to say whether the killing was the result of malice and premeditation, or whether it occurred during a sudden quarrel or heat of passion. No definite time was necessary after defendant was struck for his angry passions to cool. The jury had the right to infer when he left the room to procure his pistol that he did so with the deliberate and willful intention of killing deceased.

The question as to the sufficiency of the evidence and as to the degree of a crime, where the jury have a right to draw an inference form the facts, is peculiarly a question for the jury. With the determination of the jury it is not the province of this court to interfere. People v. Wright, 4 Cal. App. 704, 89 Pac. 364; People v. Fitzgerald, 138 Cal. 41, 70 Pac. 1014; People v. Buckley, 143 Cal. 379, 77 Pac. 169. Dr. T. N. Sample was called as a witness on behalf of the people, and he testified to attending deceased as he was dying, and to the fact that he examined the body and the wound. He was asked by counsel for the prosecution to state the course of the bullet from the entrance to where it struck a bone where it was changed out of the course it had first taken. To this question the defendant objected, and now insists upon the objection. The witness was permitted to answer, and stated: "The bullet struck just on the anterior axillary linethat is, the straight up and down line from the point here and passed inward and slightly backward and slightly downward, and struck the beginning of the lumbar vertebræ, and then was deflected slightly outward and downward. I got that bullet, and after handed it to the coroner at the coroner's inquest. In striking the arm the bullet made a hole underneath the skin, but not into the muscle. The wounds mentioned are the only ones I found on the body, and I found but one bullet." It was not error for the court to permit the witness to answer the question. The witness was not asked to give his opinion as to the position the person must have been standing in at the time he was shot with relation to the deceased, and therefore the question did not come within the ruling of People v. Smith, 93 Cal. 445, 29 Pac. 64. The object of the question was to show the position of the wound, the course taken by the bullet, and its place of entrance and exit; so as to show the jury the facts.

It is further claimed that it was error in the court to refuse to strike out some remarks made by the district attorney in his argument in regard to the instructions that would be handed to the jury in the case.

The argument of the district attorney upon this point was to the effect that instructions were prepared by counsel, and often stated hypothetical circumstances and conditions, which made it necessary for the jury to look at them carefully and critically. But the district attorney did not state that the jury must disregard the instructions, and we do not think that he went beyond the scope of his right to state, by way of argument and illustration, his views of the case and the manner of instructing the jury. The remarks do not come within the reason of the rule given in the various cases in which remarks of district attorneys have been held to be error.

Defendant finally claims that "an examination of the instructions asked for on behalf of the defendant and refused by the court will convince this court that there seems to be a steady pressure in the lower court to bar out any verdict of manslaughter or acquittal. If any of the instructions asked for by the defendant were refused on the ground that they had already been given, that reason should have been given by the court. The record shows no such compliance with the law by the court, and it is therefore error." This is not a sufficient assignment of error in the giving or refusing of an instruction or of instructions to justify us, under the well-settled rule, in examining the instructions given or refused. It is due to the court that, when counsel rely upon error in the refusal to give an instruction, they should state the instruction, and point out the reasons why they think that the court erred in refusing to give it; and the same rule obtains in regard to the giving of an instruction to which objection is made. People v. Cebulla, 137 Cal. 315, 70 Pac. 181; People v. Monroe, 138 Cal. 99, 70 Pac. 1072; People v. Woon Tuck Wo, 120 Cal. 298, 52 Pac. 838.

The judgment and order are affirmed.

Pen. Code, § 951, provides that an information shall contain the title of the cause and of the court in which it is filed. The caption of an information was as follows: "In the Superior Court of the County of Tuolumne, State of California, The charging part did not specifically mention the county, the only language indicating the county in which the offense was committed being that accused on a specified date, "at the said county of and before the filing of this information, did then and there etc. Held that, while the caption of the information is no part of the information, viewed solely as a pleading, yet, inasmuch as the statute requires it to be made part of the instrument which constitutes the information, it may be considered in determining the question of venue where the body of the plead

ing contains no direct allegation thereof, and hence the averment that the crime was committed in "said county of -"should be construed to refer to the county mentioned in the caption.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 239.] 2. CRIMINAL LAW-APPEAL-REVIEW-HARMLESS ERROR-FORMAL DEFECTS IN INDICTMENT.

Formal defects or imperfections in indictments or informations which have no tendency to prejudice accused or to deprive him of any substantial rights should be disregarded, Pen. Code, § 1404, expressly providing that neither a departure from the form nor mode prescribed in respect to any pleading, nor an error nor mistake therein, shall render it invalid unless it has actually prejudiced accused, or tended to his prejudice in respect to a substantial right.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3101-3105.]

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Ross S. Thompson was prosecuted for assault with intent to commit rape, and from a conviction of assault he appeals. Affirmed.

J. B. Curtin, and R. J. White, for appellant. U. S. Webb, Atty. Gen., and Geo. Beebe, Deputy Atty. Gen., for the People.

HART, J. The appellant was accused by information of the crime of assault with intent to commit rape, and upon his trial in the superior court of Tuolumne county was convicted of an assault. This appeal is taken from the judgment upon the judgment roll alone. The only point made by the appellant is that the averments of the information fail to bring the case within the jurisdiction of the superior court of Tuolumne county, in that it is not specifically alleged in the charging part thereof that said alleged crime was committed in said county. In other words, the claim is that the information does not affirmatively show the venue, for which reason it is contended, the court did not acquire or have jurisdiction to try the appellant for the offense charged in the information.

The information, including the caption, which states the title of the court and cause, reads as follows: "In the Superior Court of the County of Tuolumne, State of California. The People, Plaintiff, vs. Ross S. Thompson, Defendant. Information for Assault with Intent to Commit Rape. Ross S. Thompson, accused by the district attorney of the said county by this information of the crime of assault with intent to commit rape, committed as follows: The said Ross S. Thompson, on the 10th day of July, one thousand nine hundred and seven, at the said county of

and before the filing of this information did then and there willfully, unlawfully and feloniously in and upon one E. W., a female over the age of sixteen years, and not the wife of said Ross S. Thompson, make an assault with intent then and there to ravish, carnally know and to commit rape upon the said E. W. by force and violence and against her will and against her resistance, contra

ry," etc. Section 951 of the Penal Code provides that the indictment or information shall contain, among other things, the title of the cause and of the court in which the indictment or information is filed. The charging part of the information here does not, it is to be seen, specifically mention "Tuolumne County," where the cause was tried, and the only language in that part of said information indicating the county in which the offense was committed is to be found in the words "said county of -" and the words "then and there."

It is evident that the failure to insert in the information the name of the county in the blank space immediately following the words "said county of" involves purely a clerical misprision, and, while it is true, as contended by counsel for appellant, that the caption of an information or indictment is no part of the same, viewed solely as a pleading, it is nevertheless required by the statute to be made part of the document or instru-. ment which constitutes such information or indictment; and, we think that, for the purpose of determining the question of venue, as to which the body of the pleading is silent so far as a direct allegation is concerned, the averment in the information or indictment that the crime was committed in "said county of -"should and may reasonably

be construed to refer to the county mentioned in the caption as the name or title of the court, and, so construing it, the venue is sufficiently established in the accusatory pleading to invest the court with jurisdiction of the offense and of the person of the accused. Such has been the construction given indictments and informations similarly phrased by the appellate courts of many other states, and in none of the California cases cited by appellant have we been able to find language expressing an opinion in conflict with this conclusion.

In People v. O'Neil, 48 Cal. 259, the charging part of the indictment does not contain the words "said county" or "county aforesaid" or words of similar import. The same is likewise true of the case of People v. Craig, 59 Cal. 370. There is was charged that the defendant "did willfully and unlawfully resist, delay and obstruct" a certain public officer, to wit, "a duly elected, qualified and acting constable of Pajaro township, of the county of Monterey, of the state of California," in the discharge of his duty as such officer. While the name of the county-assuming that Monterey county was where the offense was committed-in which the alleged offense was committed is mentioned in the information as a part only of the description of the officer's official character and authority, there is no direct averment that the crime was committed in that county, nor are there elsewhere in the information any words or language which could be so construed as to fix the venue. In fact, there does not appear to be any attempt to allege the venue in the