admits the defect in his pleading he will avail himself of the opportunity offered by the order for resubmission and decline to appeal. But in those cases where he is satisfied with the form of the indictment, or where the facts will not permit another and different one to be framed, he has the right, representing the people, to stand upon its sufficiency and have the matter determined by the appellate court. If, by its order to submit the cause anew, the trial court could deprive him of this right, it must result that he would be compelled to come again into court with the same form of indictment, which would again be overthrown, to the end that the defendant. would never be tried, and the people, with the right of appeal secured to them, would never be permitted to have this court pass upon a pleading which was believed to be legally sufficient.

The motion to dismiss is therefore denied.

The indictment is founded upon section 23 of the "Act to promote the purity of elections," etc. (Stats. 1893, p. 24.) The section declares that: "Every person who carries away or destroys, or attempts to carry away or destroy, any poll list, or ballots or ballot-box for the purpose of breaking up or invalidating such election, or willfully detains, mutilates, or destroys any election returns, or in any manner so interferes with the officers holding such election, or conducting such canvass, or with the voters lawfully exercising their rights of voting at such election, as to prevent such election or canvass from being fairly had and lawfully conducted, is punishable," etc.

After the usual jurisdictional and necessary averments the indictment charged: "That after said election had been had in said precinct, and while the votes were being counted and canvassed therein, one George Lee willfully, unlawfully, and feloniously interfered with the regular election officers of said precinct, then and there conducting the canvassing of the lawful votes cast in said precinct, by then and there willfully and unlaw fully acting as a clerk in tallying the said votes cast in

said precinct, he, the said George Lee, not then and there being an officer nor clerk of the election board of said precinct, either appointed or qualified, as provided by law, and then and there willfully prevented the canvass of the said vote in said precinct from being fairly had and lawfully conducted, contrary to the form, force, and effect of the statute," etc.

Defendant demurred upon the grounds that the facts charged did not constitute a public offense, and also, under subdivision 2 of section 1004 of the Penal Code, a demurrer in effect for insufficiency and uncertainty.

By appellant it is claimed that the language "then and there willfully prevented," etc., charges the defendant in the terms of the statute, and makes the indictment sufficient; that what precedes it may be treated as surplusage and ignored. But this solution, while lacking nothing of ease, fails of complete satisfactoriness.

Criminal proceedings, it is true, have been much simplified by the codes, and many offenses may now be charged in the strict language of the statute. Nevertheless, there are certain fundamental principles which have neither been abrogated nor modified. A defendant is still entitled to be apprised with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare his defense, and, upon acquittal or conviction, plead his jeopardy against further prosecution. Where, as under some of our statutes, several separate, different, and distinct acts are enumerated, the commission of each or any of which constitutes the crime, it is not sufficient to charge the defendant with being guilty of the crime without further charging the commission of the particular act or acts upon which the crime is based. A person, for example, charged with vagrancy is of right entitled to know whether he is called upon to meet the charge as being a common drunkard, or as being a dissolute associate of known thieves, or as being a healthy beggar, in short, as belonging to what class, or as having habitually committed what act to lay him liable as a "vagrom man."

So here the statute enumerates different acts, each one constituting a specific offense, though the same crime, and the defendant, to make his defense, is entitled to know what wrong it is charged he has done. Thus the averment of the specific act here set forth becomes material and is not surplusage.

But is it legally sufficient? In other words, is the act which it is charged defendant committed in violation of the statute? It will be noted that it is not one of those specially described as forbidden, nor is it an act made criminal by any other statute, so that, if it be a crime, it becomes such under this statute itself, because it is an act which in some manner interferes with the officers so "as to prevent such election or canvass from being fairly had and lawfully conducted."

The circumstances that the act complained of is not one of those named and prohibited does not render its commission less a crime if it belongs to the class or kind of acts made penal by the statute. While all crimes in this state are statutory, it is still within the power of the legislature to embrance all acts of the same general character in one class, and to punish the performance of any of them, without more specific designation, as a crime. Indeed, as to some offenses, description, except in general terms, is impracticable if not impossible, and the lesgislature has exercised its undoubted power by grouping them in classes. Thus the man who operates a powder-mill in a populous city maintains a public nuisance, as does he who so places electric wires as to endanger life or property, but it would tax the acumen of the wisest body of lawmakers to describe with particularity every act act the doing of which in our complicated civilization would constitute a nuisance. And the legislature has not attempted to do so, but by general language has declared that anything which is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, etc., is a public nuisance. (Pen. Code, sec. 370.)

CVII. Cal.-31

So here, it would be impossible to enumerate the many ways and means which the ingenuity of men. might devise to defeat the orderly or lawful conduct of an election; and, without undertaking the task, the legislature has seen fit to make offenses of them all. It is merely for the court to say whether or not the act charged, like the act charged to constitute a nuisance, comes within the class.

Of the sufficiency of the act complained of in the case at bar we entertain no doubt. The law guarantees not only the orderly, but the legal, conduct of elections. An election legally conducted is carried on by officers duly appointed and under oath for the proper performance of their duties. One who willfully and feloniously usurps the functions of an election officer, whether he does so by force or guile, is in either case interfering with the legal conduct of that election, and is amenable to the law for his conduct.

The judgment is reversed, with directions to the court to overrule defendant's demurrer.

VAN FLEET, J., GAROUTTE, J., MCFARLAND, J., and BEATTY, C. J., concurred.

[No. 19522. Department One.-June 24, 1895.]

O. J. FLAGG, APPELLANT, v. D. D. DARE ET AL., RE

SPONDENTS.

ATTACHMENT-ACTION UPON CONTRACT-PURCHASE OF STOCK.-In an action upon a contract for the purchase of shares of bank stock, by the terms of which it was agreed that upon sixty days' n tice the defendants would purchase the stock at an agreed price per share, with interest from the time of the investment, in considera. tion of a subscription by the plaintiff for the same number of shares of bank stock, a complaint setting up the contract and alleging that plaintiff gave the defendants the required notice, and offered to deliver the stock to them, and demanded that they purchase the same and pay therefor the agreed price per share and interest, and that defendants refused to accept and pay for the stock or perform their agreement, shows that the action is founded upon an

express contract for the direct payment of money, upon which an attachment may be issued.

ID.-AFFIDAVIT FOR ATTACHMENT-STATEMENT OF CONTRACT.—It is not necessary that an affidavit for attachment should state whether the contract for the payment of money is express or implied, and an affidavit showing that the defendants are indebted to the plaintiff in a specified sum upon a contract for the direct payment of money is sufficient.

APPEAL from an order of the Superior Court of San Diego County dissolving an attachment.

The facts are stated in the opinion.

T. J. Capps, D. M. Hammack and Haines & Ward, for Appellant.

The attachment was properly issued. (Donnelly v. Strueven, 63 Cal. 182; Dunn v. Mackey, 80 Cal. 107; Code Civ. Proc., sec. 537; Kohler v. Agassiz, 99 Cal. 9-13.) The affidavit for attachment was sufficient. (Simpson v. McCarty, 78 Cal. 175; 12 Am. St. Rep. 37; Weaver v. Hayward, 41 Cal. 117; Bank of California v. Boyd, 86 Cal. 386, 389; Wheeler v. Farmer, 38 Cal. 203, 215, 216.)

Charles Wellborn, for Respondent.

The affidavit was insufficient. (Code Civ. Proc., sec. 538; Hawley v. Delmas, 4 Cal. 195; Wilke v. Cohn, 54 Cal. 214; Harvey v. Foster, 64 Cal. 297; Simpson v. McCarty, 78 Cal. 178; 12 Am. St. Rep. 37.)

BELCHER, C.-This is an appeal from an order dissolving an attachment.

It is alleged in the complaint that on the twentieth day of January, 1891, the plaintiff purchased and had issued to him forty shares of the capital stock of the California National Bank of San Diego, for which he then paid five thousand dollars, and that he afterward received as dividends on the stock one hundred and twenty-five dollars and no more; that to induce plaintiff to purchase the said stock the defendants, prior to the said purchase, made and executed their agreement in writing, reading as follows: