the affirmative by the supreme court in Glenn County v. Johnston, 129 Cal. 404, [62 Pac. 66], where the question was necessarily involved and we must follow it.

2. Was the judgment of such character that execution could issue upon it? This is plainly answered by said section 1252 providing that if the money be not so paid or deposited (that is, paid or deposited within thirty days after the preliminary judgment of condemnation), execution may issue as in civil cases. This is a matter that the authorities hold can be regulated by statute. If execution can issue to enforce the payment of the amount of the award, the judgment must at that time be equivalent to a personal judgment for the payment of money. Prior, however, to this period beginning thirty days "after final judgment," the judgment amounts to no more than an order fixing the price at which plaintiff may or may not take the property. It is, in effect, an adjudication of the amount which plaintiff should pay as a just compensation for it to be entitled to take the property for the purpose claimed, but if the status is not changed by some other proceeding, after the expiration of said thirty days, it becomes substantially a personal judgment for the direct payment of money.

3. What, then, was the effect of said appeal? It stayed the operation of the judgment for the reason that the character of said judgment must be determined as of the time when the appeal was taken. It was not then a judgment requiring the payment by plaintiff of a specific amount of money and which could then be enforced by a writ of execution. It was the adjudication of a conditional liability which might or might not become a fixed and absolute obligation. It was not, therefore, within the exception noted in said section 942.

The effect of the appeal being to remove the subject matter of the order from the jurisdiction of the lower court, that court is without power to proceed further as to any matter embraced therein until the appeal is determined. (Vosburg v. Vosburg, 137 Cal. 493, 496, [70 Pac. 473].)

In conclusion, it may be suggested that even if the appeal bond did not operate to stay proceedings, it would be proper for this court to allow petitioner to file an effective bond for that purpose. The authority for such procedure

is found in Hill v. Finnigan, 54 Cal. 494. Such request is made by petitioner if such action be deemed advisable by the court, but it is believed that the appeal has accomplished that result, and we think the writ should issue, and it is so ordered.

Chipman, P. J., and Hart, J., concurred.

[Crim. No. 638. First Appellate District.-November 1, 1916.] THE PEOPLE, Respondent, v. EDWARD GORMAN, Appellant.

CRIMINAL LAW-CIRCUMSTANTIAL EVIDENCE-INSTRUCTION.-In a criminal case it is not error to refuse to instruct the jury at the request of the defendant on the law of circumstantial evidence, upon the theory that the case of the prosecution was based upon such evidence alone, where it appears that the prosecution did not rely solely or chiefly upon circumstantial evidence to obtain defendant's conviction.

LD.-MURDER-CONSPIRACY TO COMMIT ROBBERY-INSTRUCTION.-In a prosecution for murder it is not error to refuse to instruct the jury at the request of the defendant upon the subject of conspiracy to commit robbery, where there was little or no evidence offered to support that view of the case.

ID.-LACK OF MOTIVE-CIRCUMSTANCE OF INNOCENCE-INSTRUCTION.It is not error to refuse to instruct the jury that if the evidence fails to show any motive on the part of the defendant consistent with reason and soundness of mind to commit the crime charged, it is a circumstance in favor of innocence, and should be considered by the jury in connection with the other evidence in the case.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Frank H. Dunne, Judge.

The facts are stated in the opinion of the court.

J. K. Ross, and John W. Elwell, for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

THE COURT.-This is an appeal from a judgment of conviction of the defendant of the crime of manslaughter, and from an order denying his motion for a new trial.

The defendant was charged with murder in the killing of one Eugene Kelly in a brawl on Third Street, in the city and county of San Francisco, during the early morning hours of September 8, 1915. It is the first contention of the appellant that the court erred in its refusal to give certain instructions requested by the defendant relating to the law of circumstantial evidence, and presented upon the theory that the case of the prosecution was based upon circumstantial evidence alone; but an inspection of the record discloses that the prosecution did not rely upon circumstantial evidence alone or chiefly to obtain the defendant's conviction, and this being so, it is obvious that the instructions which the defendant requested, however correctly they may have stated the law of circumstantial evidence, had no application to the case, and were therefore properly refused by the trial court.

The same reasoning applies to the instruction asked by the defendant upon the subject of conspiracy. The charge was murder; and while it is true that the prosecuting officer in his opening statement to the jury had something to say about a conspiracy of several of the participants in the embroglio to commit a robbery, there was little or no evidence offered to support this view of the case, while, on the other hand, there was the direct testimony of a police officer to the effect that he saw the defendant strike the fatal blow. Under these conditions the matter of a possible conspiracy between several of the participants in the brawl to rob someone involved in it was not a sufficient factor in the case to warrant the giving of an instruction upon that subject.

The appellant's next contention is that the court erred in refusing to give the jury the following instruction at the defendant's request: "If the evidence fails to show any motive on the part of the defendant consistent with reason and soundness of mind to commit the crime charged, this is a circumstance in favor of his innocence, and should be considered by the jury in connection with the other evidence in the case." The appellant cites no direct authority supporting his contention that this instruction should have been given; while, on the other hand, it has been expressly decided that it is not error in the trial court to refuse to give a re

quested instruction in substantially the form of that presented by the defendant herein. (People v. Glaze, 139 Cal. 154, [72 Pac. 965].)

The appellant further contends that the evidence is insufficient to warrant a conviction, and devotes considerable space in the brief of his counsel to certain alleged inconsistencies and uncertainties in the testimony of the witnesses for the prosecution. We are satisfied, however, upon a careful reading of the record that there was sufficient evidence presented which, if believed by the jury, would have warranted a verdict of manslaughter, and this being so, the judgment of conviction will not be disturbed.

The next contention of the appellant is that the court erred in its refusal to grant him a new trial upon the ground of newly discovered evidence. The affidavits offered by the defendant at the hearing of his motion for a new trial were merely cumulative, and besides, were largely negative in their averments, and, in our opinion, the court did not abuse its discretion in denying the defendant's motion upon that ground.

As to the final charge of the appellant, that the court and the prosecuting officer were guilty of certain acts of misconduct which materially and improperly prejudiced the defendant's case before the jury, we find this contention to be entirely without merit.

Judgment and order affirmed.

[Civ. No. 1581. Third Appellate District.-November 1, 1916.] L. A. HARBAUGH, Appellant, v. LASSEN IRRIGATION COMPANY (a Corporation), Respondent.

EXECUTION-GREATER AMOUNT THAN JUDGMENT QUASHING OF WRIT.— Where an execution is issued for a greater amount than that for which the judgment was rendered, it may be quashed on motion. ID.—JURISDICTION-DIFFERENT JUDGES.-The jurisdiction of the court to quash the writ is not affected by the fact that the judge who presided at the hearing of the motion to quash was a different judge from the one who presided when the writ was ordered to issue.

APPEAL from an order of the Superior Court of Lassen County recalling and quashing an execution. H. D. Burroughs, Judge.

The facts are stated in the opinion of the court.

F. A. Kelley, for Appellant.

Pardee & Pardee, for Respondent.

BURNETT, J.-The appeal is from an order granting defendant's motion to recall and quash an execution. The judgment in the cause was rendered October 16, 1907. An attempt was made to have this judgment reviewed by the appellate court, but the appeal was dismissed on August 12. 1914. On May 20, 1915, the superior court of Lassen County, Honorable J. O. Moncur, Judge presiding, made an order directing execution to issue on said judgment and the clerk of said superior court issued an execution under the seal of said court on the twenty-seventh day of November following. A copy of this writ is set out in the transcript. It recites that "$586.95, with interest, is now (at the date of this writ) actually due on said judgment," and contains the usual direction to the sheriff to satisfy said judgment. Then follows in the transcript a copy of the "order granting motion to settle and quash execution." It recites:

"The defendant's motion, issued in the above entitled court and cause, to recall and quash execution, coming on regularly to be heard on Monday, April 3rd, 1916, at two o'clock p. m., Pardee & Pardee for the motion, and no one' appearing for plaintiff, the evidence on said motion being presented... the said motion was then submitted, and the same being by the court duly considered, it is ordered that the motion be and the same is hereby granted, and the said execution be and the same is hereby recalled and quashed. "CLARENCE A. RAKER, "Judge of the Superior Court of the State of California, in and for the County of Modoc, presiding in the above entitled court and cause on the hearing of said motion." It is apparent that the transcript is quite incomplete, as it does not contain a copy of the notice of said motion or of the papers used on the hearing in the court below as required