This litigation has arisen-as much former litiga tion arose out of the carelessness of officers and contractors when attempting to follow statutory provisions about street work, or willful efforts to evade some of those provisions. We do not think, however, that in the case at bar any of the points made for reversal are tenable.

It is contended by appellant that the contract for the work is absolutely void because it contains the following clause: "Nor shall the said James Gilleran, said superintendent, nor his sureties or bondsmen, be liable or holden . . for any delinquency on his part." This clause should not have been in the contract; for the superintendent can only be relieved from the "delinquency of persons and property assessed." The clause is not authorized by the statute. It proposes to relieve the superintendent from the consequences of his failure to do certain acts necessary to the validity of the assessment, upon which alone the contractor could collect the money due for his work. It proposes to exempt the superintendent from the performance of official duties, and, as between the parties to the contract, is probably void as against public policy. But it did not affect or prejudice the rights of the property owner, and therefore, as to appellant, did not make the contract void. Appellant relies on Brown v. Jenks, 98 Cal. 10; but in that case the unauthorized proposition that the contractor, after the completion of the work, should keep the streets in thorough repair for five years, was included in the proposal for bids; and it was held that, as the bids were made on that basis, they would necessarily be higher than if the unauthorized proposition had not been in the proposal, and the burdens of the property But in the case at bar the owner were thus increased. unauthorized proposition in the contract relating to the delinquency of the superintendent was not in the proposal and the bids were not influenced by it.

It is contended that the judgment should be reversed because both the assessment and the demand included the cost of work not authorized by the resolution of

intention. The resolution provided for granite curbs on Tenth street, between Folsom and Harrison; for paving the roadway with basalt blocks; "and that granite curbs and plank sidewalks be laid on the angular corners of the intersection of Sheridan and Tenth streets, and that granite crosswalks be laid across said intersection." The language of the contract substantially followed that of the resolution of intention, although the latter part of it is a little ambiguous. It seems, however, that the contractor, in addition to the work clearly specified in the resolution, also laid a sidewalk in front of lot 2, the lot owned by appellant. The assessment

was divided into three apportionments the first, as against said lot 2, was for $348.86; the second, for $66, and the third, for $82.90; and appellant contends, and we will assume correctly, that the first and third apportionments include all the work embraced in the resolution of intention, and that the second apportionment is exclusively for work not embraced in said resolution. But the second apportionment of $66 was entirely for laying a sidewalk in front of said lot 2, and is completely separable from the two other apportionments; and it therefore did not vitiate the other apportionments. Moreover, it is apparent that the demand for each apportionment was separately made. The demand on lot 2 was made for $348.86, for $66, and for $82.92. The demands for the valid appor tionments were therefore good, notwithstanding the demand for the separate amount of $66 for sidewalks. This view is within the principle of Ede v. Knight, 93 Cal. 165, and Parker v. Reay, 76 Cal. 103. The judgment should therefore be modified by striking out the $66 and interest, and in all other respects should be affirmed. Respondent contends that the whole judg ment should be affirmed, because appellant's only remedy for the unauthorized work was an appeal to the supervisors, and cites as authorities on the point Perine v. Forbush, 97 Cal. 305, and the cases there cited.

We

are not clear, however, that the facts of the case at bar bring it within the principle of those cases.

The language of the superintendent with respect to the commencement of the work is as follows: "The work to be commenced within fourteen days, and completed within ninety days from the date of this contract"; and appellant contends that this was not a fixing of the time for the commencement of the work as provided by section 6 of the act. (Stats. 1885, p. 151.) That section provides that the superintendent shall fix the time for the commencement of the work, "which shall not be more than fifteen days from the date of the contract." And appellant contends that he should have named the particular day within the fifteen days.

"Within fourteen days" was held good in Fletcher v. Prather, 102 Cal. 424; but, as appellant says, the precise point here made seems not to have been made in that

case.

However, we do not think that there is any force in the contention. If the statute had provided that the work must be completed within a certain time after its commencement it might be of some importance to fix the very day on which it should be commenced; but there is no such provision, the time of completion being left to the discretion of the superintendent. In the case at bar he fixed ninety days from the date of the contract for the completion, and within fourteen days from said date for the commencement of the work. The date of the contract was June 9th; and if, instead of saying "within fourteen days," he had named the fourteenth day, which would have been June 23d, the effect would have been the Under the present condition of the statute we really can see no importance attaching to this contention.

same.

There are no other points necessary to be consid ered.

The order denying a motion for a new trial is affirmed. and the cause is remanded, with instructions to the

superior court to modify the judgment by striking out and deducting therefrom the sum of $66 and all interest on said last-named sum of money. In all other respects the judgment is affirmed.

HENSHAW, J., and TEMPLE, J., concurred.

[Crim. No. 6. Department One.-June 26, 1895.]

THE PEOPLE, RESPONDENT, v. LEONG FLY, AP

PELLANT.

SUPPORT

CRIMINAL LAW-EMBEZZLEMENT-CONSISTENCY OF FINDING OF VERDICT-VENUE.-Where a defendant, accused of the crime of embezzlement of a horse, wagon, and harness in the county in which they were received, is proved to have sold and traded off the horse in another county, but to have retained the wagon and harness which were found in his possession in the county where the horse was sold, a verdict finding the defendant guilty of embezzling the horse in the county in which the horse, wagon, and harness were all originally received, and not referring to the wagon and harness, will not be set aside upon the ground of inconsistency of the jury in not finding the defendant guilty of embezzling all of the property described, nor upon the ground that the effect of the verdict is to show that the defendant was prosecuted in the wrong county.

[D. PLACE OF EMBEZZLEMENT-COMPLETION OF OFFENSE-SALE OF HORSE.-The offense of embezzlement in the county where the horse was received was complete the moment it was taken with intent wrongfully to appropriate it, regardless of the subsequent removal of the property to another county and the sale of the horse therein.

APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial.

The facts are stated in the opinion of the court.

Rawson & Merchant, for Appellant.

When a jury finds a defendant, who is charged in an indictment with stealing several articles, guilty of stealing one only of them it is an acquittal as to the others. (People v. Wiley, 3 Hill, 194; Swinney v. State, 8 Smedes & M. 576.) The offense must have been complete within

CVII. Cal.-32

San Diego county, in order to give the court of that county jurisdiction. (People v. Valenzuella, 6 Pac. C. L. J. 561.)

Attorney General W. F. Fitzgerald, for Respondent.

The embezzlement of a part of the sum of money in question, or one of a number of articles set out in the information, is sufficient to sustain the verdict; but it, of course, acts as an acquittal as to all the other arti cles enumerated. (People v. Gray, 23 Cal. 125; Gerard v. State, 10 Tex. App. 690; 6 Am. & Eng. Ency. of Law, 503.) An indictment for embezzlement may be laid either in the county in which the money or property was received, or in the county into which it has been taken. (6 Am. & Eng. Ency. of Law, 498, and cases there cited.)

VAN FLEET, J.-The defendant was informed against, tried, and convicted in the county of San Diego of the crime of embezzlement, and sentenced to the state prison for a term of two years. He appeals from the judgment and from an order denying him a new trial.

The property charged to have been embezzled was a horse, wagon, and harness. It appeared without conflict that defendant and a confederate took the property charged in the county of San Diego and carried it into the county of Orange, where they sold or traded off the horse, but retained the wagon and harness, which latter were found in their possession when they were arrested in Orange county. The defense was that there was no intention to embezzle the property, but to return it in due time to the owner. The defendant was tried separately, and the jury found him guilty of embezzling the horse, but the verdict was silent as to the wagon and harness, which in legal effect was an acquittal as to the latter.

Although not so stated in terms, the real and only question involved in the appeal is whether the evidence. sustained the verdict. The position taken by defend