On

one, he was guilty of the other. People v. | party. Section 407 provides that a summons Cook, 148 Cal. 334, 341, 83 Pac. 43. shall direct an answer within 10 days if servThere was no error prejudicial to defended within the county, and within 30 days if served elsewhere. Defendant filed a cross-comant in denying his request to introduce the plaint under section 442, and on December 23, record of conviction of the witness King. 1908, served the same on plaintiffs' attorneys. He (King) admitted his guilt, and this was On January 17, 1909, defendant served the the stealing which constituted the basis of January 22, 1909, default was entered for failcross-complaint on plaintiffs personally. the offense of receiving stolen property for ure to answer the cross-complaint. Another enwhich defendant was being tried. The rec- try of default was made on January 29, 1909, ord evidence, if introduced, would only and on February 2, 1909, judgment was enter have confirmed what the witness himself ice was unnecessary and surplusage, and, whethed on the default. Held, that the personal serv had already testified to without objection. er plaintiff's attorneys resided in the county or We are unable to see how defendant was elsewhere, plaintiffs were in default at least as prejudiced by the exclusion of the evidence. early as January 22d, and if they resided in The character of King's sentence had noth-days from December 23d, and the entry of dethe county plaintiffs were in default after 10 ing to do with his credibility or defendant's fault was not premature. guilt.

mature.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 211, 212; Dec. Dig. § 132.*] 3. JUDGMENT (§ 120*)-DEFAULT-ENTRY OF DEFAULT.

the court, on plaintiff's failure to answer a The entry of a default in the minutes of cross-complaint, did not render it invalid.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 210; Dec. Dig. § 120.*] 4. JUDGMENT (§ 131*)-DEFAULT-ENTRY OF JUDGMENT.

[Ed. Note. For other cases, see Judgment, An ordinance of the city of Los Angeles Cent. Dig. §§ 211, 212; Dec. Dig. § 132.*] requiring junk dealers to make reports to 2. JUDGMENT (§ 132*)-Default-Premature ENTRY. the chief of police of certain kinds of arIf such personal service was necessary, the ticles when purchased by them was intro-entry of default on January 29th was not preduced in evidence, and testimony given on behalf of the people to show that defendant was a junk dealer, and that he had not complied with the requirements of the ordinance in this respect. Defendant objected to the introduction of the ordinance, and urges that its admission was error because the affidavit of publication thereof is dated June 23, 1899, and there is no evidence to show that it continued to be a law of the city of Los Angeles on the 14th and 15th days of December, 1908. The ordinance was delay in entering a judgment for defendant on Plaintiffs cannot complain of the clerk's proved as required by subdivision 5, § 1918, plaintiffs' default: the provision requiring it to Code Civ. Proc., and the prima facie show-be entered immediately being merely directory ing made entitled it to be received in evi- and for the benefit of the party obtaining judgdence. If the objection urged were good, the prosecution would be required to prove a negative, and, as the matter is one of record, this could only be established by the introduction of all the ordinances passed by the city since the date of the passage of the original ordinance, in order that the court might determine that the original ordinance had not been repealed. We are of opinion that the burden is upon the defendant to overcome the presumption raised by the introduction of an ordinance regularly passed. Merced Co. v. Fleming, 111 Cal. 46, 49, 43 Pac. 392; People v. Baldwin, 117 Cal. 244, 250, 49 Pac. 186. No other objection to the introduction of the ordinance is urged. ·

ment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §8 160, 245; Dec. Dig. § 131.*]

Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by John G. Ritter and wife against F. Braash, in which defendant filed a crosscomplaint. From a default judgment for defendant on the cross-complaint, and from an order denying plaintiffs' motion to strike the answer and cross-complaint, and from an order denying their motion to set aside the default entered thereon, plaintiffs appeal. Affirmed.

M. Randall and Randall & Gaines, for appellants. C. Ibeson Sweet, for respondent.

TAGGART, J. Action to cancel promissory note. Default judgment was entered on cross-complaint of defendant praying for judgment on the note. Appeal is by plaintiff from this judgment, from an order of the superior court denying his motion to strike defendant's answer and cross-complaint from | the files, and from an order of the court denying his motion to set aside the default. entered on the cross complaint.

Complaint was filed December 3, 1908, demurrer thereto December 11th, and on December 18, 1908, demurrer was overruled.

elsewhere, the plaintiffs were in default at least as early as the 22d day of January. 1909. If they resided in Los Angeles county, the time expired in 10 days after December 23, 1908. The second entry of default made on January 29, 1909, by the court, apparently based upon the service on the parties personally on January 18th in the county where the action was brought, was sufficient upon which to predicate the default judgment if personal service on the parties had been necessary; but such service was mere surplusage and without effect upon the question.

Whichever service is relied upon, however, the time for plaintiffs to answer had expired before their default was entered. The entry of default in the minutes of the court did not render it invalid or ineffective, and the delay of the clerk in entering the judgment on the default is not a matter of which plaintiffs can complain. The provision that it shall be entered immediately is merely directory and for the benefit of the party in whose favor the judgment is given, and the plaintiffs cannot invoke such failure for the purpose of annulling the judgment in defendant's favor. Edwards v. Hellings, 103 Cal. 204, 207, 37 Pac. 218.

On December 23, 1908, an answer and cross-] attorneys resided in Los Angeles county or complaint separately stated but bound as one instrument, stated in the transcript to have been "duly verified," was served on the attorneys for plaintiff; their acceptance of service being as follows: "Received copy of within answer & cross this 23rd day of Dec., 1908, Randall & Gaines, attorney for plaintiff" their residence not being given. On January 18, 1909, personal service of the answer and cross-complaint was made on both plaintiffs in Los Angeles county, and default for failure to answer the cross-complaint was entered by the clerk of the superior court on January 22, 1909. The record also shows a minute entry of such default by the court on motion of attorney for defendant on January 29, 1909, and on February 2, 1909, `judgment was entered by the clerk on default for failure to answer the cross complaint, for the amount due on the note and for costs. On February 13, 1909, plaintiffs served notice that on February 19, 1909, they would move the court to set aside the default judgment and all subsequent proceedings for irregularity, in that the default was entered before the time to answer the cross-complaint had expired; also, that they would move the court to strike out the paper purporting to be an answer and cross-complaint because not signed and verified; and, also, for judgment on the pleadings, for the reason that no answer to the complaint was filed in the time allowed by law. On the day noticed the motion to strike out was denied and the motion to set aside the default continued to February 26th that plaintiffs might file affidavits in support of that motion, and on the last-named date the motion was denied. The affidavits filed appear to be framed upon the theory that they are intended to support an application for relief under section 473, Code Civ. Proc., instead of a motion on the ground of "irregularity" in entering default before the time for answering had expired; but treated as a showing under section 473 they are insufficient and without any showing on the merits. The complaint, which was verified, was not made a part of the showing on the motion; but, even if it had been, we are not prepared to say the court abused its discretion in denying the motion.

There was no "irregularity" in the entry of the default of plaintiffs for failure to answer the cross-complaint. Prior to the entry of the judgment they were regularly served with the cross-complaint. Under section 1015 of the Code of Civil Procedure, the service made on their attorneys on December 23, 1908, set the time running within which, under the provisions of section 442, Code Civ. Proc., they must answer or demur to the cross-complaint. Estate of Nelson, 128 Cal. 242, 60 Pac. 772; Rose v. Mesmer, 134 Cal. 459, 66 Pac. 594; Wood v. Johnston, 8 Cal. App. 258, 96 Pac. 508. Whether the

We see no error in the rulings of the trial court, and judgment and orders appealed from are affirmed.

1.

We concur: ALLEN, P. J.; SHAW, J.

(32 Nev. 145)

STATE v. CLARK. (No. 1,813.) (Supreme Court of Nevada. Nov. 1, 1909.) ESCAPE (§ 9*)-INDICTMENT.

Comp. Laws, § 4208, provides that .an indictment is sufficient if it can be understood therefrom that it is entitled in a proper court; that it was found by a grand jury of the proper district; that defendant is named or described; that the offense was committed at some place within the court's jurisdiction, and at some time the offense charged is clearly set forth in ordiprior to the time of finding the indictment; that nary and concise language, and stated with such certainty as to enable the court to pronounce judgment upon a conviction. Section 4840 procounty jail who shall escape or attempt to esvides that every person lawfully confined in a cape shall be punished. Accused was indicted for "the crime of attempting to escape from a fully confined in the jail of said county under county jail," in that, while accused was lawan indictment for burglary, he "did willfully, unlawfully, and feloniously attempt to break out of said county jail and in pursuance of said attempt did willfully, unlawfully, and feloniously break out of a cell in said county jail" in which he was confined, and assaulted and overpowered a jailer of said jail, contrary to the statute, etc. that the acts complained of were done with inHeld, that the indictment sufficiently alleged tent to escape, as the word "feloniously" means "done with intent to commit a crime." and with a design on the part of the accused to commit the felony with which he is charged, and the word "attempt" implies both an intent and an endeavor to accomplish it, and that the indict

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

104 P.-38

ment complies with requirements of section | break out of, or attempt to break out of, 4208.

[Ed. Note.-For other cases, see Escape, Cent. Dig. §§ 9, 11-16; Dec. Dig. § 9.* For other definitions, see Words and Phrases, vol. 3, pp. 2730-2735; vol. 1, p. 621; vol. 8, p. 7586.]

2. ESCAPE (§ 10*).- ADMISSIBILITY OF EVI

[Ed. Note. For other cases, see Escape, Cent. Dig. 88 17, 18; Dec. Dig. § 10.*]

3. CRIMINAL LAW (§ 322*)-EVIDENCE-PRESUMPTION-OFFICIAL DUTY.

Where no irregularities appear, it will be presumed that public officers do as the law and their duties require them.

see

[Ed. Note.-For other cases, Criminal Law, Cent. Dig. § 728; Dec. Dig. § 322.*] 4. ESCAPE (8 6*)—NATURE AND ELEMENT OF OFFENSES.

Where a person is confined in a jail under an indictment regularly brought against him for a crime and he attempts to escape, he commits a crime, although the bench warrant under which he was arrested was irregularly issued, but, when the imprisonment is unlawful, the right to liberty is absolute, and the one who is confined is not guilty of the offense of escape by regaining it.

[Ed. Note.-For other cases, see Escape, Cent. Dig. 87; Dec. Dig. § 6.*]

such jail, then, upon conviction, he shall be punished by imprisonment in the state prison not less than one nor more than ten years." Section 4840, Comp. Lws. The indictment, after due entitlement of court and cause, is as follows: "Defendants, C. Clark, Harry May, and W. O. Grady, above named, are accused by the grand jury of Esmeralda' county, state of Nevada, by this indictment found this 4th day of September, A. D. 1908, of a felony, to wit, the crime of attempt to escape from a county jail, committed as Said defendants, C. Clark, Harry

follows:

May, and W. O. Grady, and each of them, on the 1st day of August, A. D. one thousand nine hundred and eight, or thereabouts, and before the finding of this indictment, at the county of Esmeralda, state of Nevada, were and each of them was lawfully confined in the county jail of Esmeralda county, state of Nevada, under an indictment returned by the grand jury of Esmeralda county, state of Nevada, charging them, and each of them, with the crime of burglary, and the said defendants, and each of them, while lawfully confined in the said county jail as aforesaid, at the time and place aforesaid, did willfully, unlawfully, and feloniously attempt to break out of said county jail, and in pursuance of said attempt did willfully, unlawfully, and

Appeal from District Court, Esmeralda feloniously break out of a cell in said county County.

jail in which they and each of them were

C. Clark was convicted of an attempt to confined, and assault and overpower a jailer escape from jail, and appeals. Affirmed.

C. C. Ward, for appellant. R. C. Stoddard, Atty. Gen., for the State.

of said county jail; all of which is contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the state of Nevada. SWEENEY, J. The appellant, having been A. H. Swallow, District Attorney of Esmeraltried and convicted of an attempt to escape da County, Nevada." This court has held from a county jail, and sentenced to 10 years' that, where a specific intent is required by imprisonment, now seeks the intervention of statute to constitute the crime, such specific this court for a new trial. He contends that intent, being an essential ingredient of the the trial court erred in admitting any testi- crime itself, must be alleged and proved bemony in the cause, for the reason assigned yond a reasonable doubt. State v. Rodriquez, that the indictment is fatally defective be- 31 Nev. 102 Pac. 863. The Supreme cause it is not specifically alleged in the in- Court of this state in line with the overdictment that the defendant did the acts com-whelming weight of authority has, however, plained of with the intent to escape, and, further, that the bench warrant, not having been legally issued, was insufficient to place the defendant in legal custody. A review of the record in this case will show that neither of these positions are well taken. The crime for which defendant was indicted reads thus: "Every person lawfully confined in a county jail, or in the custody of any officer or person, under a lawful arrest, who shall escape or break away from such officer or person, or shall escape from or break out of, or attempt to escape from or break out of, such jail, shall, on conviction thereof, be punished. And in case such person is under arrest, or confined in jail, upon a charge of felony, and so escape, or break away from, such arrest, or escape from, or

*

*

also held that when the statute forbids the doing of a certain thing, and is silent concerning the intent with which it is done, a person doing the unlawful act forbidden by law is guilty of the crime charged, even though he had no wrongful intent beyond that which is involved in the doing of the acts prohibited. State v. Zichfeld, 23 Nev. 304, 46 Pac. 802, 34 L. R. A. 784, 62 Am. St. Rep. 800. So, in the present case, admitting but not conceding, because we believe with the jury otherwise, that the defendant had no intention of escaping, the indictment sufficiently charges and the record substantiates the charges that he did those things charged in the indictment especially made criminal and forbidden by law. Commonwealth v. Mash, 7 Metc. (Mass.) 472; State v. Voight, 90 N.

jection which tended to establish the acts of defendant in making the attempted escape as charged in the indictment from which the jury deduced its verdict of guilty was all properly admitted in evidence. State v. Rigg, 10 Nev. 288; State v. Angelo, 18 Nev. 425, 4 Pac. 1080.

C. 741; Commonwealth v. Conley, 163 Mass. | People v. Conroy, 97 N. Y 68; State v Rech539, 40 N. E. 862; Myers v. State, 1 Conn. nitz, 20 Mont. 488, 52 Pac. 264; State v. Boyle, 502; State v. Anderson, 3 Nev. 256; State 28 Iowa, 522; Hamilton v. State, 142 Ind. v. Johnson, 9 Nev. 178; State v. Angelo, 18 276, 41 N. E. 588; State v. Smith, 31 Wash. Nev. 425, 4 Pac. 1080; State v. Goodenow, 65 248, 71 Pac. 767; State v. Halpin, 16 S. D. Me. 30; Hood v. State, 56 Ind. 263, 26 Am. 170, 91 N. W. 605. The indictment, tested Rep. 21; Davis v. Commonwealth, 13 Bush by the requirements of the law of this state (Ky.) 318; Wharton's Criminal Evidence (8th (Comp. Laws, § 4208), and the authorities Ed.) § 725. herein cited and reasons given, is sufficient The Supreme Court of Oregon, in passing without the specific allegation of intent. As upon an indictment of a similar nature of the Supreme Court of this state in the case crime to the one under consideration, very of State v. McGinnis, 6 Nev. 109, has propaptly observes and correctly quotes in sup- erly held that "criminal intent can only be port thereof authorities which sustain its proven as a deduction from declarations or position, as follows: "The information char- acts. When the acts are established, the ges that the defendant assisted Bland in an natural and logical deduction is that deattempt to escape by doing certain specific fendant intended to do what he did do, and, acts. As he could not assist in an attempt if he offers no excuse or palliation of the to escape unless such attempt was actually act done, such deduction becomes conclusive" made, the allegation is sufficient, after ver--the evidence admitted over defendant's obdict, that Bland in fact attempted to escape, and, as an attempt to escape necessarily involves an intent to do so, it follows that he had such an intent. There is, of course, a distinction between an intent and an attempt. Intent is a quality of the mind, and implies a purpose only, while an attempt implies an effort to carry that purpose into execution; but there can be no attempt until there has been an intent. Mr. Bishop says: 'An attempt always implies a specific intent, not merely a general mental culpability. When we say that a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full. The act covers it only in part. 1 Bish. Cr. Law (5th Ed.) § 729. An attempt, therefore, embodies both the intent to do a thing, and a direct ineffectual act done to ward its commission. 1 McClain, Cr. Law, § 222. Hence the charge of an attempt necessarily includes and is equivalent to a charge of an intent to accomplish what was intended. Johnson v. State, 14 Ga. 55; Prince v. State, 35 Ala. 367. We are of the opinion, therefore, that the information sufficiently charges that Bland had an intent to escape." State v. Daly, 41 Or. 515, 70 Pac. 707. "The single word 'attempt' carries the double idea both of an intent and the endeavor to accomplish it; a proposition everywhere held." 2 Bish. New Cr. Procedure, § 91. The word "feloniously" has been defined by Webster and by innumerable authorities in a legal sense to mean “done with intent to commit a crime," and, when the word "feloniously" in an indictment is interpreted, it means that the act was done with the intent to commit a crime and with a design on the part of the perpetrator to commit the felony with which he is charged. State v. Hughes, 31 Nev. -. 102 Pac. 562; State v. Douglas, 53 Kan. 669, 37 Pac. 172; People v. Willett, 102 N. Y. 251, 6 N. E. 301; State v. Noland, 111 Mo. 473, 19 S. W. 715; Phelps v. People, 72 N. Y. 334; People v. Butler, 1 Idaho, 231;

2. The defendant in the present case, while convicted of an attempt to escape from a county jail, was at the time of the outbreak held under an indictment regularly brought against him for burglary. The defendant has not shown any informalities or irregularities in the commitment which would justify this court in presuming that the clerk did not issue the bench warrant complained of in accordance with law. No irregularities appearing the presumption is that public officers do as the law and their duties require them. Lawson on Presumptive Evidence, pp. 34, 53. We believe, however, that the defendant was legally held by the bench warrant issued under sections 4224, 4225, Comp. Laws. Even though conceding appellant's contention that the bench warrant was irregularly issued, yet the defendant was legally in custody on the burglary indictment, and hence appellant's contention, if granted, would avail nothing. The Supreme Court of California in the case of People v. Ah Teung, 92 Cal. 425, 23 Pac. 578, 15 L. R. A. 190, properly stated the law of escape when it said: "An escape is classed as a crime against public justice, and the law, in declaring it to be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that when one has been, by its authority or command, confined in a prison that it is his duty to submit to such confinement until delivered by due course of law, no matter whether he was committed to await a future trial, or as punishment after judgment of conviction, or for any other purpose authorized by law. But, when the imprisonment is unlawful, and is itself a crime, the reason which makes the flight from prison an offense does not exist. In such a case the

The indictment being substantially suffi-dence produced with the presumption of the cient, and no error appearing to the prejudice of defendant's rights, the judgment of the lower court is affirmed. It is so ordered.

NORCROSS, C. J., and TALBOT, J., con- tion of evidence, but, as the indictment and

2. CRIMINAL LAW (§ 778*)-TRIAL-INSTRUC- 1. EMBEZZLEMENT (8 8*)-STATE FUNDS-DETIONS-PRESUMPTION OF INNOCENCE.