[No. 20271. Department One.-June 29, 1887.]

THE PEOPLE, RESPONDENT, v. ALBERT MONTEITH, APPELLANT.

CRIMINAL LAW-GRAND LARCENY INFORMATION-ALLEGATION OF OwnERSHIP CLERICAL ERROR.-An information for grand larceny, after specifically alleging that the defendant, Monteith, committed the offense in stealing a horse of the value of two hundred dollars, to gether with a saddle, bridle, and blanket of the value of twenty-five dollars, proceeded as follows: "All of said personal property was then and there the personal property of Gardner F. Williams, and was of the aggregate value of $225, and was stolen, taken, and carried away as aforesaid by the said Gardner F. Williams, contrary to the form, force, and effect of the statute." Held, that the information was sufficient after verdict to sustain a conviction, and that the insertion of the name of Williams in the latter portion of the information was a mere clerical error, and should be disregarded.

ID. VARIANCE.-In such a case, the fact that the information charged the stealing of a horse, whereas the evidence showed the stealing of a gelding, does not constitute a variance.

ID. EVIDENCE AS TO SOBRIETY-EXPERT TESTIMONY.-A witness who is not an expert may testify as to the apparent condition of the defendant as to sobriety at the time of the offense.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.

The facts are stated in the opinion.

Willis Whitmore, and H. R. Havens, for Appellant.

Attorney-General Johnson, for Respondent.

HAYNE, C. The appellant, Albert Monteith, was convicted of the crime of grand larceny, and sentenced to four years in the state prison. on the appeal.

Several points are made

1. It is contended that the information is not sufficient to support the judgment. The information first charges, clearly, specifically, and in formal phrase, that Albert Monteith committed the crime of grand larceny in stealing a horse of the value of two hundred dollars,

together with a saddle, bridle, and blanket of the value of twenty-five dollars. It then proceeds as follows: "All of said personal property was then and there the personal property of Gardner F. Williams, and was of the aggregate value of $225, and was stolen, taken, and carried away as aforesaid by the said Gardner F. Williams, contrary to the form, force, and effect of the statute," etc.

66

The argument is, that this charges an offense against Gardner F. Williams, and not against the prisoner. But it is apparent that the insertion of the name of Williams was a mere clerical error. The information first distinctly states that the prisoner stole the property, and that it was the property of Williams; and it cannot be that Williams stole his own property. Moreover, the statement in question is, that the property was stolen, taken, and carried away as aforesaid by the said Gardner F. Williams," which clearly refers to the first part of the information, and shows that the name of Williams was not intended to follow. The words last quoted may be stricken out altogether without in any degree impairing the sufficiency of the information. We think that, taking the whole information together, it sufficiently charges the prisoner with the crime of which he was convicted.

Very probably there was a defect of form. But defects of form must be taken advantage of by demurrer. A defendant cannot be allowed to take his chances of a favorable verdict, and hold in reserve the power to have an unfavorable one set aside for a defect of form which could easily have been rectified if attention had been called to it at the proper time.

2. Part of the defense was, that the prisoner was intoxicated when he took the horse. With reference to this, a witness for the prosecution, who saw the prisoner a short time before he took the horse, was asked what appeared to be his condition as to sobriety. It is urged

that since the witness was not an expert she was not competent to testify on this point. But drunkenness is, unfortunately, of such common occurrence, that it does not require an expert to pronounce upon it. We think the case falls within the principle of People v. Sanford, 43 Cal. 32, 33.

3. The fact that the information charged the stealing of a horse, whereas the evidence showed the stealing of a gelding," does not constitute a variance. (People v. Pico, 62 Cal. 52.)

66

The other points made do not require special notice. We therefore advise that the judgment and order be affirmed.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, judgment and order affirmed.

[No. 12016. Department One.-June 29, 1887.]

ROSENTHAL, FEDER, & CO. ET AL., RESPONDENTS, V. MARCUS LEVY, ASSIGNEE, APPELLANT.

INSOLVENCY-ORDER DIRECTING ASSIGNEE TO ACCOUNT-APPEAL.—An order directing an assignee for the benefit of the creditors of an insolvent debtor to render an account of the estate of the insolvent, as required by section 29 of the Insolvent Act of 1880, is not appealable.

APPEAL from an order of the Superior Court of Nevada County requiring the assignee of an insolvent debtor to file his account.

The proceeding was brought to compel the appellant, the assignee for the benefit of the creditors of one L. Hyman, an insolvent debtor, to make and file a true account of the estate of the insolvent, under the provisions of sections 29 and 30 of the Insolvent Act of

1880. The assignee appeared in response to an order to show cause issued upon the petition of the respondents, and demurred to the same generally and specially. The demurrer being overruled, the assignee answered, denying that the respondents were creditors of the insolvent. Thereafter the court granted a motion for judgment. upon the petition, and made an order requiring the assignee to file an account. From this order the appeal is taken. The further facts are stated in the opinion of the court.

Crittenden Thornton, F. H. Merzbach, and A. Burrows, for Appellant.

John Caldwell, and A. D. Mason, for Respondents.

TEMPLE, J. The order appealed from in this case is in no sense a final order, and is not appealable. Furthermore, it is one the court should have made of its own motion, upon mere suggestion. The assignee was, apparently, in default, as he had not complied with section. 29 of the Insolvent Act, which required him to render an account at the expiration of three months.

The assignee cannot at any time be heard to object to an order requiring him to render an account. The court may so order as often as occasion seems to require. Appeal dismissed.

PATERSON, J., and MCKINSTRY, J., concurred.

[No. 12138. In Bank.-June 29, 1887.]

H. H. SCOTT ET AL., PETITIONERS, v. SUPERIOR COURT OF YOLO COUNTY, RESPONDENT.

JUSTICE'S COURT-ENTRY IN DOCKET-PAYMENT OF AMOUNT OF JUDGMENT INTO COURT-APPEAL-JURISDICTION.-The plaintiff in an action in a Justice's Court is not deprived of his right to appeal from a judgment rendered in his favor by the mere payment into court by the defendant of the amount of the judgment; and an entry in the docket of the justice reciting the payment, and that the parties came into court and settled the case upon that basis, does not deprive the Superior Court of jurisdiction of the appeal, or of determining whether or not the judgment had in fact been satisfied.

1

APPLICATION for a writ of prohibition to restrain the Superior Court of Yolo County from proceeding with the trial of an action appealed to it from the Justice's Court. The further facts are stated in the opinion of the court.

J. Lambert, for Petitioners.

G. P. Harding, and R. Clark, for Respondent.

TEMPLE, J.-One Hayes sued H. H. Scott before a justice of the peace in Yolo County to recover a sum of money. Defendant answered, offering to permit judgment to be entered against him for a specified sum. The plaintiff declining to accept the offer, a trial was had, in which the plaintiff recovered less than had been offered. Judgment was entered for plaintiff for that amount, and also for defendant for costs. Defendant paid the amount

of the judgment into court. Afterward plaintiff also paid to the justice all of the costs which accrued at the trial. The justice's docket states, after showing the entry of payment and filing defendant's cost bill: "January 17th. Plaintiff and defendants came into court and settled on the above basis. Plaintiff paid witness fees for himself, $14.60."

It does not appear that satisfaction of the judgment