The record-union., 1891-03-06

charged in said information, and guilty
of said prior conviction; of his trial and
| the verdict of the jury, on the 18th day of
October. 1889, guilty of burglary in the
second degree. The defendant was then
asked if he had any legal cause to show
against him." This was sufficient to
| meet the requirements OF Sections 1900
and 1907 of the Penal Code; and imprison-
! ment for the term OF eight years was au
thoriZed. {Penal Code. Secs. 46l and 665l.
| 1t is also objected that the Judgment is in
/ sufficient in form, because it orders and
adjudges that the defendant be punished
| 6y Imprisonment in the State Prison, ETC.
In our opinion the judgment was suf-
| ficient in this regard, and thei objection is
! without merit.
q. The point is made thai it was error
to proceed with the trial without the
reading of the information by the clerk.
But there is nothing II the record to show
that the information was not read by the
clerk to the jury, ana we must therefore
| presume that it was.
! Z. 1t is earnestly contended' that new
trial should have been granted the de-
fendant on the ground that the verdict
was contrary to law and to the evidence.
1t must be admitted that the evidence, as
brought up in the record, does not seem
| to us to be very strong and convincing;
and yet the jury, under proper instruc-
tions, which were very full and clear
upon every point involved, found the
defendant guilty. And the learned Judge
of the court, who saw the witnesses and
heard them testify, denied defendants
motion. Under the circumstances we do
not feel at liberty to say that the evidence
was so insufficient as to justify a reversal
on this ground.
s. IN one part of its charge the court
| told the jury that under the allegations of
Il
! the case, they must be satisfied OF two
| things in order to warrant them in con-
| yictng the defendant, viz, entry into the
| building and intent TO commit larceny.
| 1t is claimed that another fact, viz, the
ownership of the building as alleged was
| equally necessary, and that the instruc-
| ton as given was therefore misleading.
| But the court afterwards fully instructed
| the jury on this point, telling them that,
OF course, they must find the ownership
of the building to be as set forth in the
information. This was certainly suf-
ticient, and it takes away appellants last
ground of complaint.
1t results, that the Judgment and order
appealed from should be affirmed, and
we so advise. BELCHER, c.
| We concur:
FOoTE, c.,
! VAN CLIEF, G.
THE COURT.
For the reasons given in the foregoing
opinion the judgment and order appealed
from are affirmed.
FILLED February 26, 1871
Appeal from Superior Court of San
Diego Couuty-W. l.. Pierce. Judge.
FOR Appellant, Haines GJ Ward, a. G..
| Wooster.
For Respondent, John NJ. Lucas.
DEP ARTAJENr ONE
c. F. HAGMAN, Respondent,
| VS.. NJ 10 ~,
| ELLEN L. WILLIA5IS EFT AL, w io'o'i'
"a Appellants.
This is an action to 1oreclose lien for
/ wori. and materials used in painting a
house erected for the defendant, Ellen L.
| williams. ..5-' -. ~
The complaint states that the defendants
are husband and Wife; that Mrs. Williams
owned a lot of land, and Gn day named
entered into contract with certain build
ers to furnish all the materials and labor
and erect for her q dwelling house on the
lot; that the; contractors commenced the
construction of the house, and afterwards
made a contract with theplaintiff and one
Anderson, under and by which they were
to furnish the materials and perform the
labor of painting the house, and were to
be paid therefor the sum of Sl55; that
upon the making of this contract Mrs.
Williams promised and agreed with the
painters that she herself would pay and
guarantee payment of the sum of money
to become due them under their contract,
and would also pay them any and all
further sums which might become due
fthein for extra work on the house,;
that the painters entered upon the per-
/ fornance of their contract and fully per-
formed and complied with all the condi-
tons of the same, and at the request of
Mrs. Williams furnished materials and
did extra work Of The value of $26; that
the full amount due under the contract
and for. extra WORK, which Mrs. Williams
promised and agreed to pay was $lS1, of
which sum Sf07 had been paid, leaving
still due and unpaid the sum of S74: that
the house was finished, and in due time
the painters filed and had recorded a
claim of lien, which was duly verified
and stated all the facts required by stat
ute to be stated in such a case, and that
subsequently Anderson duly assigned
and transferred to the plaintiff al his
claim and demand under the lien and
against the said property and defendants.
The defendants, by their answer, de-
MED that they or either of them promised
or agreed to pay Anderson and Hagman
| for the work done under their contract
or to guarantee payment thereof, or TO
| pay for any extra work, i'll any manner
whatever; denied that Anderson and
Hagnan, or either of them, fully per-
formed all the conditions of their con-
| tract. or. Of any, contract, mentioned in
| the complain5, or complied with the
same; and, on Information and belief,
denied that the instrument filed and re-
corded by Anderson and Hagman, as a
claim of lien, 9"contains a statement of
their demand or any demand, with the
names of the person or persons by whom
they were employed or of any employ
ment, or to whom they furnished materi-
ais, or OF any materials, with statement
of the terms, time given, or conditions of
their contract, or OF any contract"
The ease was tried, and all the facts
were found by the court to be as alleged
in the complaint. Judgment was then
entered, foreclosing the lien and award
ing the plaintiff $50 as a reasonable at
the complaint. The defendants moved
for new trial upon bill of exceptions,
which was duly settled and filed. The
motion was denied and they appealed
from the judgment and order.
/ 1t is objected for respondent that the
| order denying the new trial cannot be
considered for the reason that the record
contains no copy of the order. The OBJ
lection cannot be sustained. The record
| shows that after the order was made a
second bill Of exceptions was settled and
filed, setting out that the motion was
made by the defendants, pursuant to
their notice of intention to move for new
| trial, on certain grounds stated, and that
/ both the plaintiff and defendants ap-
| peared by their attorneys; that the first
| bill of exceptions and certain afiidavits
were used on the hearing, and then, that
| '!the court, having heard the argument
OF counsel. and being fully advised, doth
order that said motion for new trial be,
! md n nj