tion, with the intent to lessen competition, it would be the duty of the jury to convict the defendant, was pertinent and based upon the testimony of the witness Brier and that of said Salcedo. It is not disputed that Salcedo was, at the times mentioned in the information, a member of the Butchers' Association, and it further appears that on several different occasions he personally remonstrated with the defendant against the sale of fresh meats to Robinson.

It will be remembered that it was proved that the defendant himself admitted, while on the witness stand at the preliminary hearing of the charge against him, that in his dealings with Robinson "he was governed by the desires of the members of the association". We have thus given attention to some of the more important objections to the charge of the court. As declared, the instructions as a whole with clearness correctly declared to the jury the rules by which they were to be governed in considering the evidence.

Some intimation is thrown out by counsel for the appellant that the law against trusts and unlawful combinations is out of joint with the constitution and as well conflicts with the law on the subject of criminal conspiracies as defined by the Penal Code. [25] The specific ground for the constitutional objection to the law is not pointed out, and we do not think any such objection can be shown. Nor can we perceive any incompatibility, if such an objection could be successfully urged against the anti-trust law, between the latter and the code section pertaining to the crime of conspiracy. The essence or gist of conspiracy here, as is true of the crime as it is defined by section 182 of the Penal Code, is in the formation and maintenance of the conspiracy for the purpose of accomplishing some unlawful object, or, also under the code, for the purpose of accomplishing a lawful object by unlawful means. As we have before declared, in the case at bar the actual acts constituting the crystallization of the object of the conspiracy constitute evidence only of the unlawful combination or agreement to co-operate together for the purpose of destroying free competition in trade, and the only distinction, which is none at all, so far as the crime itself is concerned, between the conspiracy charged here and that with which the code section deals, is that the former is made to apply to a different object from any mentioned in the code.

We have found nothing in the record demanding a reversal of either the judgment or the order, and both are, therefore, affirmed.

We concur:

CHIPMAN, P. J.
BURNETT, J.

HART, J.

Crim. No. 111. Third Appellate District. January 22, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. CHARLES ROMERO, Defendant and Appellant.

[1] CRIMINAL LAW-GRAND LARCENY-SUCKING CALF-OWNERSHIP-EVIDENCE-UNRECORDED MARK.—In a prosecution for larceny of a sucking calf, marks and brands found upon the cow claimed to be the mother are some evidence of ownership, although not recorded as required by statute.

[2] ID.-ID.—ID.—ID.—VERDICT SUPPORTED BY EVIDENCE.-It is held herein that there was evidence tending to prove ownership other than by the marks and brands shown to belong to the prosecuting witness who claimed ownership of the mother of the calf sufficient to support the verdict.

[3] ID. TRIAL MISCONDUCT OF JUROR-EXCESSIVE DRINKING OF INTOXICATING LIQUORS DURING RECESSES-SOBRIETY WHILE OF DUTY -ABSENCE OF MISCONDUCT.-The fact that a juror drank intoxicating liquor during recess of the court will not vitiate the verdict if it appears from the affidavits of his fellow jurymen that he, while sitting or deliberating as a juror, was sober, intelligent and in a fit condition to understand and deliberate upon the evidence and determine the verdict.

Appeal from the Superior Court of Modoc County-Chas. M. Head, Judge.

For Appellant-James H. Stewart, James Wylie.

For Respondent-U. S. Webb, Attorney-General.

The defendant was convicted of the crime of grand larceny. ile appeals from the judgment on the verdict and from the order denying his motion for a new trial. He claims that the evidence was insufficient to establish his guilt, his contention being based principally upon the fact that the evidence was circumstantial. The 'arceny charged was the felonious taking of a sucking calf about eight months old. The criticism of the evidence is addressed to two facts-first, that proof of the ownership of the mother of the calf depended upon the marks and brands upon the cow which had not been recorded as required by the statute, and, second, the circumstance that while the defendant was killing and dressing the calf the cow stood in the road bellowing and apparently showing auch distress at the loss of her young and when driven away broke from the pasture where she had been placed and returned the next morning and resumed her demonstrations of grief.

[1] It seems to have been the theory of defendant's counsel that the marks and brands found on the cow were no evidence of ownership because they had not been recorded. In People v. Bolanger, 71 Cal. 17, it was held that an unrecorded mark is some evidence of ownership. But they were referred to by the witnesses as one of the mears of identifying the animal as well as tending to show ownership. The marks and brands were shown to belong to the prosecuting witness who claimed the ownership of the cow, and there was evidence tending to prove ownership other than by these marks and brands as means of identification.

Ownership of the calf did not wholly depend upon the evidence given by the mother, to which no objection was offered, although the witnesses seem to have attached some importance to her demonstrations in confirming them in their belief, otherwise formed, that

the calf killed by defendant belonged to his neighbor, Van Loan. [2] We think there was sufficient evidence to support the verdict.

The defendant was a witness in his own behalf. After the defendant had rested the court permitted him to be recalled for further cross-examination by the district attorney. The following proceedings occurred: "By Mr. Jamison: Q. Did you have any conversation with Wade Williams, here in Alturas, Modec County, California, on Main Street of said town, or near the bridge over Pit River, at which conversation only yourself and Wade Williams was present and within hearing of it, in the latter part of October, 1906, just after you had been arrested for grand larceny on the charge of stealing a calf belonging to E. Van Loan, in which conversation, after asking Wade Williams to go your bond, you said to him: "Tell old Charlie,'-meaning the older brother of Wade Williams -'not to be too hard on me,' or words in substance and to that effect?

"Mr. Wylie: We object to that question on the ground that it is irrelevant, incompetent and immaterial; this is his own witness, and he cannot impeach his own witness.

"The Court: I understood that he was recalled on cross-examnation, for further cross-examination.

"Mr.Wylie: We were through with him, he was examined in chief by us, then cross-examined, and we had closed our case and rested he is not our witness now; we were through with him when we closed our case.

"(Argument by respective counsel.)

"The Court: The rule is very strict against compelling a defendant to be a witness against himself, and it is about adjourning time; I will think this matter over until tomorrow morning. (Court gives usual admonition to jury.)

"Court now takes a recess until to-morrow morning at half past nine o'clock.

"Court is called to order Thursday, April 15th, 1909, Judge Head presiding. Present the defendant and his counsel; also the District Attorney, Jury and officers of Court.

"Charles Romero, the defendant, is on the witness stand for further cross-examination.

"Mr. Jamison: I will say this since last evening I have examined into the question that the gentlemen raised on the other side, that in any circumstances we would not have the right to ask the defendant the question propounded; and I am not satisfied that I am right in insisting that I ask the question. I will withdraw the question.

"The Court: Very well; Mr. Romero, you are excused from the witness stand.

"Mr. Jamison: That is all; the People rest."

The supreme court heid, in People v. Arrighini, 122 Cal. 121, 128, that a defendant in a criminal case "cannot be cross-examined Es to other matters (i. e., matters as to which he had not testified in chief) for the purpose of discrediting him by an attack upon his character." Nor could the defendant in this manner be compelled to testify against himself. It appears from the record, however, that the defendant had testified in chief that the calf be

longed to him and in effect that he had not stolen it, for he testifed that he "had stolen nothing." Having so testified we think the question was a proper one. In any case we think it quite clear that the jury were not influenced to defendant's prejudice by what took place.

Misconduct of a juryman is urged as ground for a new trial, the claim being that he indulged too freely in intoxicating drinks during the trial. There were some depositions submitted in support of this ground urged for a new trial, that when not on duty as a juryman Hayes did drink to excess, but several jurymen deposed that at no time during the proceedings while evidence was being taken or when the jury retired to consider their verdict was Hayes intoxicated, but on the contrary he was "sober during the triai and in all ways perfectly able to consider the evidence introduced at the trial of said cause and to intelligently exercise his judgment thereon." The trial judge occupies such relation to the trial before him as to be best able to judge of the actual condition of the juryman where the evidence is conflicting upon that point. People v. Sullivan, 129 Cal. 557.) [3] The fact that a juror drank intoxicating liquor during recess of the court will not vitiate the verdict if it appears from the affidavits of his fellow jurymen, as bere, "that the juror while sitting or deliberating as a juror, was sober, intelligent and in a fit condition to understand and deliberate upon the evidence and determine the verdici." (People v. Deegan, 88 Cal. 602.)

The judgment and order are affirmed.

We concur:

BURNETT, J.

HART, J.

Crim. No. 127. Third Appellate District.

CHIPMAN, P. J.

January 24, 1910. In the Matter of the Application of T. KAWAGUCHI, for a Writ of Habeas Corpus.

[1] CRIMINAL LAW-PRELIMINARY EXAMINATION-ORDER OF COMMITMENT-SUFFICIENCY OF EVIDENCE.-It is held in this proceeding that while there was a mass of hearsay and incompetent evidence given before the magistrate, there was sufficient competent evidence 19 support the order of commitment.

[2] ID.-ID.-ID.—ID.—HABEAS CORPUS-EPRONEOUS ADMISSION OF EVIDENCE-WHEN NOT REVIEWABLE.-Where there is sufficient competent evidence to support an order of commitment, erroneous rulings admitting improper evidence will not be reviewed on an application for a writ of habeas corpus based on a claim of the insufficiency of all the evidence.

For Appellant-McCurdy & McCurdy and S. Luke Howe.

For Respondent-Frank Atkinson, Deputy District Attorney, for People.

The petitioner is held in custody by the sheriff of Sacramento county under an order of commitment for the crime of murder, said order having been made on the 27th day of December, 1909, by the justice of the peace of Sacramento township, in said county, acting in his ex-officio capacity of magistrate.

The petitioner now claims that the magistrate was without Jurisdiction to commit him for trial for the alleged reason that the evidence upon which said commitment is founded is insufficient to disclose that a public offense was committed, or, if such offense is sufficiently shown, that there is not enough evidence to establish "sufficient cause to believe the defendant (petitioner) guilty thereof." (Pen. Code, sec. 872.)

A copy of the stenographer's transcript of the testimony received by the magistrate at the examination of the charge accompanies the petition here and is made a part thereof, and it is very clear, from an examination of said testimony, that the contention of the petitioner cannot be sustained. The testimony discloses that the homicide occurred at Courtland, in Sacramento county, on or about the 12th day of May, 1909. The deceased, one Nagatani, and the petitioner and two other Japanese, who were jointly charged with the petitioner for the crime of murder in the deposition upon which the warrant of arrest was issued, had been, on the day of the homicide, drinking together at the boarding house of one Arinobu, at Courtland, and that at that time they were all apparently on friendly terms with each other. Finally, all these parties left the drinking place together, going out of the building and to the rear thereof. Subsequently all but the deceased returned to the boarding house, and when Arinobu made inquiry as to the whereabouts of the deceased, he was toid by the petitioner and one Daimaru that he had been killed. The petitioner then admitted to Arinobu that he had inflicted a knife wound in the abdomen of the deceased.

The coroner testified that, upon holding an inquest to determine the cause of the death of Nagatani, he examined the dead body and found therein a number of knife and gunshot wounds. Arinoba testified that he was well acquainted with the deceased, and declared that the dead body was that of Nagatani.

[1] The foregoing is a brief resume of the facts proved before the magistrate, and obviously they are sufficient to support the order of commitment.

Counsel for petitioner point out a mass of hearsay and, therefore, incompetent testimony which was given before the magistrate, and insist that such testimony is insufficient to justify the order of commitment. If all the testimony upon which the commitment was ordered was identically of the same character as that to which we refer, there might perhaps be some basis for the claim that the crder committing the petitioner for trial was without authority or beyond the power of the magistrate, for the law does not contemplate that a party shall be put upon his trial for a felony under an information having for its sole support a commitment based entirely upon hearsay or incompetent evidence. Such evidence is in fact no evidence at all. [2] But, as we have shown, there is competent evidence disclosed by the transcript tending to establish the offense and sufficiently showing the petitioner's connection with the perpetration thereof, and, therefore, we are, manifestly, not concerned in this proceeding with the rulings of the magistrate admitting hearsay evidence. In other words, the rein