attachment in a sum of not less than fifty nor more than three hundred dollars, as fixed by the justice, also section 1056 providing for security for costs where the plaintiff is a foreign corporation, in a sum not exceeding three hundred dollars, and the provisions of said section 978 in reference to the costs on appeal. Even if such an undertaking could be considered as a part of the proceeding to perfect the appeal, we would have no right to assume, in view of the record, that one hundred dollars thereof could be applied to the payment of said costs. For aught that appears to the contrary the justice may have required a bond of $250.00 to indemnify the defendant against loss on the attachment or the whole amount may have been required under the provisions of said section 1036. At any rate, this is not the bond required by the statute for costs on appeal, it was not filed at the time exacted and it was not served on respondent. If these provisions of the law are to be disregarded it would be easy to justify most any departure from the legislative will.

[5] Neither is there any merit in the contention that the question of jurisdiction was waived by the respondent when he filed his answer in the superior court. [6] Parties cannot waive jurisdiction of the subject matter nor confer it by consent. Whenever the court's attention was called to the fact that no undertaking for costs had been filed or served it was the court's duty to dismiss the appeal as it had no legal power to proceed with the trial.

[7] Likewise, it may be said that the question before us is not affected by the fact that appellant offered to deposit one hundred dollars in the superior court in lieu of the bond.

In the first place, assuming that the court could have authorized such a deposit, it was a matter entirely within its discretion, and to such considerations the writ of review does not extend. [8] Again, it is clear that this discretion may be exercised-if at all-only when some undertaking, though defective, has been given. It does not exist when no security whatever on appeal has been furnished.

For further assurance of the soundness of the foregoing views we make the following quotations from the decisions:

In Croker v. Superior Court, 58 Cal. 178, it is said: "To effectuate an appeal from the judgment of a justice of the peace, three things are necessary, viz.: The filing of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking; and all these things must be done within thirty days after the rendition of the judgment. (Secs. 974, 978, Code Civ. Proc.) All of these are jurisdictional prerequisites; none of them can be dispensed with; nor can any one of them, if not done, be supplied, or if fatally defective, be remedied after the time limited by the statute; for, until all the prerequisites are completed, the appeal is not effectual for any purpose.”

It may be remarked that the legislature of 1909 added section 978a providing the further prerequisite that the undertaking “must be filed within five days after the filing of the notice of appeal and notice of the filing must be given to the respondent."

In McCracken v. Superior Court, 86 Cal. 76, in reference to the failure of the sureties to justify within five days after an exception

to their sufficiency, it is said: "The superior court had no jurisdiction to extend time within which to do an act in the justice's court while the action remained in that court, and, as we have seen, until the sureties justified, the cause remained in the justice's court. The appeal was not effectual for any purpose, and the superior court had no jurisdiction whatever in the case. It may be otherwise where a defective or informal undertaking has been given.

"In such cases it has been held that the superior court may allow a new undertaking to be filed. (Coulter v. Stark, 7 Cal. 244; Cunningham v. Hopkins, 8 Cal. 33; Rabe v. Hamilton, 15 Cal. 31; Coker v. Superior Court, 58 Cal. 177.) But to allow the superior court to assume jurisdiction and make the order complained of in this case as against the plain provision of the code, that if the sureties fail to justify within the term fixed' it must be regarded 'as if no such undertaking had been given', would be to override the express and unequivocal language of the statute." It is further stated that “Authority is given the Supreme Court to accept a new undertaking in lieu of an insufficient one in certain cases and on certain terms but we know of no such statutory authority on the part of the superior court."

In Lane v. Superior Court, 5 Cal. App. 762, it is held, as stated in the syllabus: "Upon an attempted appeal from the justice's court, where the sureties fail to justify when required to do so, the appeal must be regarded as if no undertaking had been given, and the cause remains in the justice court until a new undertaking is filed or until the sureties justify. In such case when the justification of the sureties was abandoned and an undertaking was filed more than thirty days after the rendition of the judgment, the appeal is ineffectual, and the superior court has no jurisdiction thereof."

With greater reason even must it be held that where no undertaking is filed after the notice of appeal is given and no opportunity afforded for an exception to be taken to the sufficiency of the pretended security, the superior court has no jurisdiction of the appeal.

The cases all emphasize the necessity for a substantial compliance with the requirement of the statute in order to clothe the appellate tribunal with authority to review the action of the trial court.

As here the requirement of the law was disregarded by the appellant, the court certainly had jurisdiction to dismiss the appeal, and the order to show cause is therefore discharged.

We concur:

CHIPMAN, P. J.
HART, J.

BURNETT, J.

Crim. No. 153. Second Appellate District. February 1, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. L. C. WHALEY, Defendant and Appellant.

[1] CRIMINAL LAW-APPEAL-ARGUMENT-FAILURE OF APPELLANT TO APPEAR-AFFIRMANCE OF JUDGMENT.-Under the provisions of section 1253 of the Penal Code, a judgment or order appealed from in a criminal action will be affirmed, where the appellant fails to appear on the argument or to present points and authorities in support of the appeal.

Appeal from the Superior Court of Los Angeles County-Frank R. Willis, Judge.

For Appellant-Palmer & Mahan, William M. Tisdale.

Ror Respondent-U. S. Webb, Attorney-General, and George Beebe, Deputy Attorney-General.

BY THE COURT.

The transcript herein having been filed November 26, 1909, and it appearing that the cause was regularly placed upon the January calendar, and on January 24, 1910, duly called for hearing, and appellant not appearing, and the time for filing points and authorities having expired and no points and authorities having been filed in support of the appeal,

[1] It is, therefore, ordered that the judgment and orders appealed from be and the same are affirmed, as provided in section 1253 of the Penal Code.

Crim. No. 109. Third Appellate District. February 3, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. AGOSTINO BORELLO, Defendant and Appel

lant.

[1] CRIMINAL LAW-EVIDENCE-CONFESSION-CORPUS DELICTIDEGREE OF PROOF.-It is not necessary to prove the corpus delicti beyond a reasonable doubt in order to open the way for the admission of evidence of a confession in a criminal action.

[2] ID.—ID.—ID.-ID.-ID.-ARSON-CORPUS DELICTI SUFFICIENTLY ESTABLISHED. It is held in this prosecution for arson, that the facts brought out by the evidence before any effort was made to prove the confession of the accused sufficiently established the ciprs delicti to justify the introduction of the confession in evidence.

13 In-ID.-VOLUNTARY CONFESSION SUBSEQUENT ATTEMPTED DEALL-THREATS OF PROSECUTING OFFICER ON LATTER OCCASION— CONFESSION ADMISSIPLE-If a party has voluntarily confessed his sult of a crine and subsequently undertakes to withdraw it, Cazag it to have beea bised on falsehood, such confession as Tidenes of grilt is not viti.ted by the fact that the officer to hot wa me lo charges end threef ons the accased on the ocattern ded withdraw. 1.

-CONFESSION -ÅDMISSIOL HY--ES VIMIS.-A con-
Isw, must come from end be the result of

1 from the Sperm Cort of A. nder County, R. C. Rist,

Jes H. Credey and led I. Cohen, For Respondent-I. S. Webb, Attorney-General; C. P. Vicini, Det Attney, and Benjamin P. Tabor.

The defendant, having been convicted of the crime of arson, claims, on these appeals, which are from the judgment and the order

denying his motion for a new trial, that he is entitled to a reversal for alleged errors of the trial court in allowing and rejecting certain testimony and in giving and refusing to give certain instructions. The principal contention with respect to the rulings of the court on the evidence is: 1. That the purported confession of the defendant was not shown to have been freely and voluntarily made. To the contrary, it is claimed, the incriminatory declarations of the accused were wrung from him by means of promises and threats on the part of the sheriff and the district attorney to whom said statements or declarations were made. 2. That the corpus delicti was not proved by evidence independent of that of the alleged confession, and, therefore, assuming the purported confession to have been properly obtained, it was still inadmissible. It will perhaps be the more orderly to dispose first of the last stated contention.

1.

The rule is that, while, to justify a conviction, the jury must be convinced beyond a reasonable doubt of the existence of every fact essential to constitute the offense charged and to identify the defendant as the perpetrator, it is not necessary that the evidence should be of that conclusive character in the proof of the corpus delicti in order to justify the admission of the defendant's confession. (People v. Jones, 123 Cal. 68; People v. Ward, 134 Cal. 306; People v. Tapia, 131 Cal. 651; People v. Eldridge, 3 Cal. App. 648; People v. Rowland, Vol. IX, Cal. App. Decs. 681.) [1] In other words it is not necessary to prove the corpus delicti beyond a reasonable doubt in order to open the way for the admission of evidence of a confession. If there be proof, independent of that of the confession, disclosing, prima facie, that a crime has been committed, then the trial court is authorized to receive the confession in evidence.

The facts brought out by evidence independent of that of the defendant's alleged confession may be summarized as follows: One G. B. Vicini was, in the year 1905, and up to the time of the destruction of the same by fire on the 5th day of February, 1908, the owner of the property or building designated and known as the "Summit House Hote!", situated at a certain point on the road leading from the town of Jackson to the town of Sutter Creek, in Amador county; that said building or house, as its name implies, had been and was, up to a short time before it was destroyed, used as a hotel; that, in the month of April, 1905, said Vicini and his wife, Katherine, executed a lease of said hotel and premises, for the term of six years, at a monthly rental of $60.00, to C. Lepori and L. C. Bertin, who were then and at the time of the fire engaged in conducting a business in the city of San Francisco under the firm name and style of Bertin and Lepori; that the defendant and a man named Feracone entered into possession of said hotel under said lease and that the defendant remained in possession of said property and conducted therein a hotel and retail liquor business until he sold his interest therein to one C. Rossi. In the month of July, 1906, the defendant executed a chattel mortgage to said Bertin & Lepori, covering all the household and kitchen furniture, bar fixtures, bedding, crockery, glassware, etc., to secure the payment of a promissory note for $500.00, executed by defendant to said Bertin & Lepori. Said note called for interest at the rate of six per cent per annum, payable semi-annually, and if not so paid, to be com