predicate their right to the property in question upon an attachment issued October 14, 1915, against the property of Katherine Van Alstyne, levied by the defendant sheriff upon the property in question on said date. No specific description of the property is contained in the briefs other than in the findings of the court that said property consisted of household furniture and furnishings and bric-a-brac of said household. Respondent's wife died in 1900. At that time the personal property in question was the community property of himself and wife. Respondent's daughter Katherine thereafter married Van Alstyne, and the plaintiff gave the possession of said furniture to her. The property remained continuously in her possession until July 26, 1915, when it was stored in the warehouse of the Bekins Van & Storage Warehouse, and Katherine Van Alstyne executed a bill of sale thereof to plaintiff. The arrangement between the father and daughter under which she retained possession of the furniture is thus found by the court: "On or about the first day of December, 1900, upon the death of said Jane H. Bufkin [plaintiff's wife] plaintiff loaned and delivered the possession of said personal property and the whole thereof to the defendant Katherine Van Alstyne for her use during her life as long as she should desire to use the same, or upon her death or surrender of the property, the title to the same to at once be vested in plaintiff, with the right to the immediate possession thereof, reserving in himself the right to recall and repossess himself of said property, or any part thereof, at any time, and continuously between the first day of December, 1900, and the twenty-sixth day of July, 1915, defendant Katherine Van Alstyne continuously had possession of and used the same in her home as the household furniture of herself and family. On or about the last-mentioned date defendant Katherine Van Alstyne gave up housekeeping, surrendered the possession of said furniture to plaintiff and as evidence of such transfer of title and possession and redelivery, made, executed and delivered to him a bill of sale, bearing date the twenty-sixth day of July, 1915, which was duly recorded July 27, 1915. That on July 26, 1915, plaintiff took possession of said property and that the same has remained in storage with the Bekins Van & Storage Warehouse." The court also found that there was no intention to defraud creditors in connection with the change of owner

ship and possession July 26, 1915. Appellant contends that the transfer of July 26th was invalid as to the defendant creditors, under the provisions of section 3440 of the Civil Code, requiring immediate delivery, followed by an actual and continued change of possession of personal property to effectuate a transfer as against existing creditors. There are two good and sufficient answers to appellant's claim. [1] First, the court found on sufficient evidence that plaintiff was at all times the owner of the property in question, and that Mrs. Van Alstyne was entitled only to the possession thereof. It is true that there was evidence from which the court might have arrived at an opposite conclusion, but the finding of the trial court is conclusive upon us. The transaction of July 26, 1915, therefore, amounted to nothing more than a surrender by the daughter of her right of possession to her father, the plaintiff. There was, therefore, no attachable interest remaining in her. [2] The second answer to appellant's contention is that section 3440, by express terms, does not apply to property exempt from execution. The provision is as follows: "Provided, however, that the provisions of this section shall not apply to the transfers of wines, etc.... nor to any sale, transfer or assignment of any property exempt from execution." The reason for this provision undoubtedly is that creditors can make no claims to property exempt from execution, and its transfer, therefore, should not be deemed fraudulent as to them. Section 690 of the Code of Civil Procedure provides: "The following property is exempt from execution and attachment.. 2. Necessary household, table, and kitchen furniture belonging to the judgment debtor, including," etc. The finding of the court that there was no intent to defraud creditors on the part of Katherine Van Alstyne by said transfer may have been based in part at least upon the proposition that the property in question was not subject to execution. This point was not discussed by the parties, and for that reason will not be further discussed.

Judgment affirmed.

Melvin, J., and Lennon, J., concurred.

[Crim. No. 2253. In Bank.-May 19, 1919.]

In the Matter of the Petition of ANDREW MORCK for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-EXCESS SENTENCE HABEAS CORPUS.-A sentence of twenty-five years for an offense, the maximum penalty of which is fourteen years, is not void in toto, but is a valid sentence for the term authorized by law, and where the prisoner has not served the time for which he may be lawfully imprisoned, a writ of habeas corpus will not be granted.

[2] ID.-EXCESS OF SENTENCE-CONSIDERATION BY COURT-TIME.—It is the established practice of the supreme court not to consider any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined.

APPLICATION for a Writ of Habeas Corpus originally made to the Supreme Court. Denied.

The facts are stated in the opinion of the court.

Geo. D. Collins, Jr., for Petitioner.

THE COURT.-In view of the decisions of this court we see no merit in any of the claims made in support of the petition for a writ of habeas corpus, with the possible exception of the claim that under the circumstances and in view of the provisions of section 220 of the Penal Code, the maximum penalty in petitioner's case was fourteen years. As to this it is sufficient to say that while the sentence imposed was one of twenty-five years such judgment is not void in toto. It is a valid sentence for the term authorized by the law. The judgment was pronounced December 13, 1916. [1] Obviously, therefore, the petitioner has not served the time for which he may be lawfully imprisoned. [2] It is the established practice of this court not to consider any question of excess of sentence until the expiration of the time for which the prisoner may be lawfully confined. It is clear, therefore, that a writ should not be granted at this time. In what we have said we are not to be understood as definitely determining that the judgment in this case was not one authorized by law.

The application for a writ of habeas corpus is denied.

All concur except Lawlor, J., absent.

[Crim. No. 2235. In Bank.-May 20, 1919.]

THE PEOPLE, Respondent, v. PEDRO RICO, Appellant. [1] CRIMINAL LAW-MURDER-DEGREE OF CRIME-PROVINCE OF JURY.— In a prosecution for murder, the question of the degree of the crime is exclusively for the jury, and their determination will not be disturbed when there is any evidence to support it.

[2] ID.-PREMEDITATION-SUFFICIENCY OF EVIDENCE.-In this prosecution for the crime of murder, it is held there was clearly sufficient evidence to sustain the conclusion of a deliberate purpose and intent on the part of the defendant to kill.

APPEAL from a judgment of the Superior Court of San Bernardino County. J. W. Curtis, Judge. Affirmed.

The facts are stated in the opinion of the court.

Albert D. Trujillo for Appellant.

U. S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Respondent.

THE COURT.-The defendant, Pedro Rico, charged by information with the crime of murder, was convicted of murder in the first degree, and appeals from the judgment pronounced on such conviction.

It is shown by the evidence that the defendant, who for some time immediately preceding the commission of the homicide was a boarder in the household of Mrs. Manuela P. de Ortiz and her husband, in the city of San Bernardino, was on the morning of October 29, 1918, ordered by both Mr. and Mrs. Ortiz to leave the premises, the reason apparently being that he had failed to pay for his board and lodging. He left, and shortly thereafter returned and obtained his clothes, which he took away. During the early evening of the same day, between 5 and 6 o'clock, he again returned to the house, and finding Mrs. Ortiz in the kitchen engaged in her work, he made an assault on her with a razor and cut her throat, inflicting a wound from which she instantly died. It appeared that he had been drinking whisky to some extent during the day, but the evidence in regard to this is such that it cannot be held that the jury was not warranted in

CLXXX Cal.-25

concluding that he knew fully what he was doing and was acting with a deliberate purpose and intent to kill the deceased. Upon the question of the effect of intoxicants the jury was correctly instructed. The principal point made in the appellant's brief is substantially that the evidence fails to show the premeditation which is an essential element of the first degree of the crime of murder. [1] As said in People v. Machuca, 158 Cal. 62, 64, [109 Pac. 886, 887], "this court has repeatedly declared that the question of the degree of crime is exclusively for the jury, and their determination will not be disturbed when there is any evidence to support it." [2] In this case there was clearly sufficient evidence to sustain the conclusion of a deliberate purpose and intent on the part of the defendant to kill.

A few rulings of the trial court in the matter of admission of evidence are complained of. Counsel has not specified wherein the error as to any of these rulings exists and, so far as we can see, each of the rulings was correct.

This being a capital case we have carefully examined the whole record. To our minds it discloses no reason to doubt that the proceedings in the court below were entirely without error, and that the conclusion of the jury is fully sustained by the evidence.

The judgment is affirmed.

Shaw, J., Wilbur, J., Melvin, J., Lennon, J., Olney, J., Lawlor J., and Angellotti, C. J., concurred.

[L. A. No. 5945. Department Two.-May 20, 1919.]

In the Matter of the Estate of SARAH C. ROUNDS, Deceased.

[1] WILL-TIME OF TAKING EFFECT-GENERAL RULE.-Ordinarily a will speaks as of the time of the death of the testator or testatrix. [2] ID. LEGACY TO SISTERS AND BROTHER "LIVING"-CONSTRUCTIONEVIDENCE-LEGATEES LIVING AT TIME OF DEATH.-On this appeal wherein the whole question presented turned upon the interpretation of the word "living" as used in the clause of a will giving "To each of my sisters and brother living five hundred ($500) dollars," it is held the evidence does not indicate the intention of the