sults, but only to do the work in a specified way. If the usual result of white walls and ceilings did not follow, he was not responsible for it, unless there was some default on his part in furnishing the materials called for in the specifications or in doing the work with them. The court found, and the evidence fully sustained the finding, that the plaintiff had not been remiss in either particular. Under these circumstances, as he made no express warranty as to results, and plastered and hard-finished the rooms with the materials specified in the contract, and did the work skillfully, he did all that he had contracted to do. He did not expressly warrant any particular color, the specifications did not call for any, and the work being done in a workmanlike manner with the materials designated in the specifications to be used, the plaintiff is not responsible under any implied warranty for the result. (Bancroft v. San Francisco Tool Co., 120 Cal. 228, [52 Pac. 496]; McKnight-Flintic Stone Co. v. Mayor, 160 N. Y. 72-84, [54 N. E. 661].)

There is nothing in the other points made by appellant, save as to the allowance to plaintiff of forty dollars attorneys' fees in the foreclosure of the lien. Since the appeal herein was taken it has been decided by this court that the statute allowing attorneys' fees in an action to enforce a mechanic's lien is unconstitutional. (Builders' Supply Depot v. O'Connor, 150 Cal. 265, [88 Pac. 982].) This, however, only requires a modification of the judgment. In that respect it is ordered that the judgment be modified by striking out therefrom the allowance of attorneys' fees, and as so modified the judgment is affirmed.

Angelotti, J., McFarland, J., Sloss, J., Henshaw, J., and Shaw, J., concurred.

[Crim. No. 1402. In Bank.-September 19, 1907.]

THE PEOPLE, Respondent, v. CHARLES CRAIG, Appellant.

CRIMINAL LAW-ASSAULT ON OFFICER WITH DEADLY WEAPON-INTENT TO MURDER-REVIEW UPON APPEAL.-Where the defendant was convicted of an assault upon an officer with a deadly weapon with intent to commit murder while the officer was attempting to arrest him, though an order denying a new trial cannot be reviewed upon appeal where the bill of exceptions does not show that motion for new trial was made, yet such review is of no practical consequence where all of the assignments of error are reviewable upon appeal from the judgment. ID.-RESISTANCE TO UNLAWFUL ARREST-EVIDENCE-LAWFUL ATTEMPT to Arrest for VAGRANCY.—The right of a person to resist an unlawful arrest cannot be denied; but the prosecution, in view of the circumstances of the case, was justified in introducing evidence to show that at the time of the alleged assault upon the officer he was attempting to make a lawful arrest of the defendant and his co-defendant for vagrancy.

ID. DISTINCT OFFENSE.-The fact that such evidence shows the defendant guilty of a distinct offense, for which the attempted arrest was made, is no objection to the evidence.

ID. RIGHT OF OFFICER TO ARREST WITHOUT WARRANT-KNOWLEDGE OF VAGRANCY.-Where the arresting officer had actual knowledge of a serics of continued acts constituting vagrancy by legal definition on the part of the defendant for a period of three months prior to the arrest, such vagrancy is a species of misdemeanor in which the officer having such complete knowledge was justified in making an arrest without a warrant as fully as in case of any misdemeanor committed or attempted in his presence.

ID. DEFENDANT NOT CONFINING HIMSELF TO VAGRANCY.-The admitted fact that the defendant would not have been arrested had he confined himself to vagrancy, and that he was believed to have assaulted and beaten a man on the street, cannot make illegal his arrest for vagrancy.

ID.-NATURE OF VAGRANCY.-Vagrancy differs from most other offenses in the fact that it is chronic rather than acute, that it continues after it is complete, and subjects the offender to arrest at any time before he reforms.

ID. IRRESPONSIVE ANSWER OF OFFICER-HEARSAY-PROPER ARRest— MOTION TOO BROAD-HARMLESS RULING.-Where the sergeant of police testified, without proper response to a question, to hearsay evidence of the act of defendant in beating a man, but properly testified to his instructions to the officer to arrest the defendant

for vagrancy, a motion to strike out the whole answer as nonresponsive and incompetent was correctly overruled; and the evidence being responsive as to the vagrancy, the ruling, whether erroneous or not, was harmless. ID.-TESTIMONY OF WOMAN OF ILL-REPUTE CORROBORATION OF VAGRANCY.-The testimony of a woman of ill-repute that defendant would come to her house four or five times a week was admissible as corroboration of the charge of vagrancy; but whether technically objectionable or not, such evidence could not have been prejudicial, as the officer had knowledge of his association with prostitutes and having no lawful occupation. ID.-TESTIMONY OF DEFENDANT CROSS-EXAMINATION-UNLAWFUL BUSINESS.-Where the defendant testified that he had sublet premises for purposes of prostitution, at a considerable profit, and had purchased a mining location in Nevada, upon which he intended to work when his lease expired, he was asked on cross-examination what other business he had, and was properly compelled to answer that it was gambling; his effort being to show that he was not a vagrant, it was permissible to show out of his own mouth that he had no lawful business.

ID. SUFFICIENCY OF EVIDENCE-INSTRUCTION PROPERLY REFUSED. — Where there was evidence of every element of that species of vagrancy defined by subdivision 6 of section 647 of the Penal Code, the court properly refused an instruction that as matter of law appellant at the time of the assault was not a vagrant. ID.-ABSENCE of Warrant for Arrest-ERRONEOUS REQUEST-ASSUMPTION OF DISPUTED FACT.-Where the defendant was arrested for vagrancy on instruction of the sergeant of police, or upon knowledge of his vagrancy by the arresting officer, an instruction requested by defendant, that the misdemeanor of the co-defendant for vagrancy was not in the presence of the arresting officer and that the assault for an unlawful arrest of the co-defendant was justified was erroneous, as assuming a disputed fact, and was properly refused. ID.-MISCONDUCT OF DISTRICT ATTORNEY.-Held, that there was no prejudicial misconduct of the district attorney, and no reason to suppose that he had intentionally misrepresented the testimony, though mistaken as to a matter of fact, of which the jury were the judges, and that his argument as to the offenses of the defendant did not pass the bounds of legitimate censure.

E.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. C. Hart, Judge.

The facts are stated in the opinion of the court.

R. Porter Ashe, Gaston M. Ashe, and E. S. Wachhorst, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, for Respondent.

BEATTY, C. J.-The defendant and one Charles Mack were jointly accused by information of the crime of assault with a deadly weapon with intent to commit murder. Upon a separate trial defendant was convicted of the crime of assault with a deadly weapon. He appealed from the judgment and from an order denying his motion for a new trial to the district court of appeal, where, by reason of a difference of opinion among the judges, there was a failure to decide the cause, and it has accordingly been transferred to this court for hearing and decision.

There is an objection by the attorney-general to any consideration of the appeal from the order, upon the ground that it does not appear from the bill of exceptions that any motion for a new trial was made.

The objection seems to be well founded, according to the decision of this court in People v. Ruiz, 144 Cal. 251, [77 Pac. 907], and that of the district court of appeal in People v., Frank, 2 Cal. App. 283, [83 Pac. 578], but in this case it is of no practical consequence whether the objection be sustained or not, since every assignment of error urged by counsel for appellant is reviewable on the appeal from the judgment. Such facts as are essential to a clear understanding of the questions to be considered on that appeal may be briefly stated as follows: About three o'clock in the morning of December 25, 1905, Sergeant Wilson and officer Ryan, of the Sacramento police, entered a saloon in what appears to have been an exceedingly disreputable quarter of that city, for the purpose of arresting the appellant and his co-defendant Mack. They found them drinking at the bar in company with a number of women and other men. Wilson arrested Craig and took him to the sidewalk in front of the saloon, while Ryan, by Wilson's direction, was attempting to arrest Mack, who, with the aid of some bystanders, violently resisted the attempt. Wilson, attracted by the noise, left Craig on the sidewalk and hurried to Ryan's assistance, closely followed by Craig. The evidence as to what ensued is conflicting and confusing, but there was testimony which would warrant a jury in finding that several of the men present in the saloon made common cause with

appellant and Mack in resisting the arrest and in vicious assaults upon the officers, who were speedily overpowered, deprived of their clubs, and otherwise roughly handled. Appellant and Mack, who had gained possession of the clubs, at one period of the affray concentrated their attack upon Ryan, who was then on the floor, encouraging each other by such suggestions as "Kick the son of a bitch's head off, Buff,” (the "Buff Kid" was a familiar nickname of Mack). The result of the fracas was that Ryan was very badly beaten, both officers disabled, and their prisoners enlarged. The information against the defendants was based upon the assault on officer Ryan.

There seems to have been some attempt made at the trial to show that the club with which Ryan was beaten by appellant was not a deadly weapon, but the state of the record does not warrant a consideration of that point, and it is not pressed.

The principal defense in the trial court was that the attempted arrest of the defendants was illegal, and that they were justified in such resistance as they made. The appellant at least defends his acts upon the ground that he was justified in resisting his own arrest and in aiding Mack to resist an unlawful attempt to arrest him. The facts as to this matter are that the officers had no warrant of arrest for either party, and neither had committed or been suspected of committing any felony. The only justification which could be alleged for the action of the officers was that the defendants had committed a misdemeanor in their presence. (Pen. Code, secs. 836-840.) This the prosecution undertook to show as a part of their case in chief, by proving acts constituting the crime of vagrancy, and the main contention on the part of appellant is that the superior court erred in admitting evidence of these acts.

Since the right of a person to resist an unlawful attempt to subject him to arrest cannot be denied, we think there can be no question, in view of the circumstances of this case, that the prosecution were right in submitting such evidence as they could to show that the attempted arrest of appellant and Mack was strictly legal, and certainly the fact that it was put in as a part of their main case, rather than in rebuttal, affords the appellant no ground of complaint. The only question is whether the evidence offered and admitted was relevant to the issue. For the fact that the offense was committed in