contrary, must be deemed exclusive. Conceding want of jurisdiction on the part of the justice to make the order complained of, the question as to the power of petitioner to invoke the writ of certiorari for its annulment then presents itself. Section 1069, Code of Civil Procedure, with reference to the writ of certiorari, provides: The application must be made upon a verified petition of the party beneficially interested. Is the petitioner herein shown to be such party? That part of the order complained of, purporting to strike the name of French from the file, could in no wise prejudice petitioner. The answer, being the only instrument which could be affected by the order, was an oral one requiring no signature by an attorney, and eliminating his name therefrom, it still remains as a complete answer to the complaint, and the cause was as much at issue as if French's name appeared as attorney. Aside from the fact that the order of a justice of the peace disbarring an attorney is so obviously without authority, so foreign to any jurisdiction or power reposed in a justice of the peace, its void character is made apparent upon its face, and for that reason could scarcely be said to work injury or affect the rights of anyone. Petitioner does not show how such order could affect his substantial rights, or any judgment which might be rendered in the action. That petitioner has the right to be represented by counsel does not imply that he has the right to be represented by any particular person. The attempt at disbarring French could only affect petitioner in that while the Justice of the peace persisted in his effort to prevent French from practicing law before him he could not have the benefit of French's services. It may be that French does not care to interest himself further in petitioner's defense, or, perchance, the plaintiff in the action may discontinue the same before trial and the services of an attorney will no longer be required; in either of which events, the order could not remotely affect petitioner. Upon the other hand, if this order in anywise affects a judgment thereafter rendered against petitioner in the action, he possesses the right, under section 974, Code of Civil Procedure, to appeal upon questions of law; and by section 980 the superior court, upon such appeal, may review all orders affecting the judgment appealed from. Certiorari will not lie when the matter complained of can be corrected on appeal. (Stoddard v. Su

perior Court, 108 Cal. 303, [41 Pac. 278]; Southern Cal. Ry. Co. v. Superior Court, 127 Cal. 422, [59 Pac. 789].)

While it appears from what is here said that, in the opinion of this court, the superior court erred in its judgment vacating the order, yet it is apparent that the order thus vacated has no efficacy and is a nullity, void upon its face, and an order of the court vacating an order of such character, even if erroneous, could not prejudice the rights of anyone. Section 475, Code of Civil Procedure, charges an appellate court in every stage of the action to disregard any error which, in the opinion of the court, does not affect the substantial rights of the parties, and that no judgment shall be reversed by reason of any error unless it shall appear from the record that such error was prejudicial, and that the party complaining or appealing sustained and suffered substantial injury. Prejudicial error not being apparent, an order will be entered affirming the judgment. Judgment affirmed.

Shaw, J., and Taggart, J., concurred.

[Crim. No. 121. Second Appellate District.-October 4, 1909.] THE PEOPLE, Respondent, v. GEORGE MCKEEHAN, Appellant.

CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON-ATTEMPT TO EXPEL POLICE OFFICER BY KEEPER OF POOL AND BILLIARD HALL-POLICE REGULATION.-Pool and billiard halls are the subjects of regulation under the police power of the state; and a constable as a police officer has the right to keep such places under his supervision, and may lawfully enter and remain to ascertain whether the law is being violated by sales of liquor to drunken men found therein. While he is lawfully therein, the keeper thereof has no right to expel him by force, and cannot justify an assault upon him with a deadly weapon for that purpose.

ID.-RIGHT OF EXPULSION AT COMMON LAW INAPPLICABLE.-The common-law doctrine as to the right of a manager of such a place

to eject a person (and particularly an officer of the peace) from his premises at his own pleasure, is not the law of this state. ID.-INSTRUCTION-RIGHT OF POLICE OFFICER TO REMAIN AFTER ORDER

TO LEAVE. The court properly instructed the jury as to the right of the police officer to remain in the billiard-hall after he was ordered to leave the same.

ID.-FAILURE OF COURT TO ADMONISH JURY FULLY-INJURY NOT APPEARING-PREJUDICE NOT PRESUMED.-The failure of the court to admonish the jury fully at two adjournments, under section 1122 of the Penal Code, will not be presumed to be prejudicial error where no injury to the defendant appears to have resulted therefrom, and it does not appear that the jury was not fully instructed at all other adjournments.

ID. MISCONDUCT OF DISTRICT ATTORNEY-COMMENT ON TESTIMONY PRIOR TO CROSS-EXAMINATION-MATTER OF ARGUMENT.-There was no reversible misconduct of the district attorney in alluding to the testimony of a witness for the defendant, at the close of the examination in chief, and prior to cross-examination, as matter of argument, that he is making "a plausible story." Such comment, though improper while the witness was testifying, yet is not, under the circumstances appearing, sufficient to justify the setting aside of a verdict or a reversal of the judgment. ID. ALLEGED ERRORS IN EVIDENCE-EXCEPTIONS NOT RESERVED-REVIEW UPON APPEAL.-Alleged errors in evidence to which no exceptions were reserved, and which are not included in the amendment of section 1259 of the Penal Code as amended in 1909, cannot be reviewed upon appeal.

ID. EVIDENCE OF PRIOR RAID-MOTIVE FOR ASSAULT-CROSS-EXAMINATION-RAIDS UPON OTHER PERSONS-RE-EXAMINATION-NOTICE TO ABATE NUISANCE.-The court properly allowed the prosecution to show a prior raid upon the same place by the police officer in search for intoxicating liquors which were found upon the premises and lawfully destroyed, as tending to show a motive for the assault, and where after cross-examination as to such raid, and also as to raids upon other persons, it was not prejudicial error to allow the prosecution upon re-examination to show that the police officer notified the defendant to abate the nuisance upon his premises. ID.-IMPROPER CROSS-EXAMINATION OF DEFENDANT'S WITNESS AS

то

OTHER RAIDS-HARMLESS ERROR.-An improper cross-examination by the prosecuting attorney of defendant's brother, who explained the first raid, as to other raids, being the same as to which the police officer was cross-examined by defendant, was not prejudicially erroneous, and was harmless to the defendant. ID-APPEAL-REVIEW LIMITED TO PREJUDICIAL ERRORS.-Courts of appeal sit to review such errors of the trial court and misconduct of the prevailing party as prejudice the rights of the appellant,

and not to set aside verdicts or reverse judgments merely because some error has been committed upon the trial. ID.-INTRODUCTION OF IMPROPER MATTER BY DEFENDANT AND PLAINTIFF QUESTION OF PREJUDICIAL ERROR.-Conceding that the introduction of improper matter into a case by the defendant does not justify the court in permitting the district attorney to pursue the same line on cross or redirect examination, or estop the defendant from objecting to the same, nevertheless the fact that the defendant has already called the same matter to the attention of the jury will be considered in determining whether or not the error committed at the request of the district attorney is or is not prejudicial to the defendant. ID.-DEFENDANT NOT PREJUDICED.-Held, that defendant was not prejudiced by the showing by both parties that the police officer had found "booze" on other premises, nor by the fact that the police officer had before served a notice on defendant relative to abating the nuisance at the pool and billiard hall, which tended to show that his presence there at the time of the assault was in pursuance of his duties, and that he was not then a trespasser.

APPEAL from a judgment of the Superior Court of Imperial County, and from an order denying a new trial. Franklin J. Cole, Judge.

The facts are stated in the opinion of the court.

Conkling & Brown, for Appellant.

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

TAGGART, J.-Information for assault with a deadly weapon with intent to commit murder. Verdict of assault with a deadly weapon. Appeal from judgment and order denying defendant's motion for a new trial.

Defendant was the keeper of a pool and billiard hall, and the complaining witness, Martin, was at the time of the occurrence upon which the charge is based a constable at Brawley, in the county of Imperial, where the billiard-hall was located. About two weeks prior to the trouble between them Martin raided the premises mentioned in search of "booze," as he testified, at which time he destroyed some bottles, as to the contents of which the respective parties disagree. At that time the brother of defendant, who was the

owner of the place, told Martin "he wasn't wanted in the place and for him to get out and stay out." On the evening of the affray here in question Martin was sitting in the hall watching a game of pool, when defendant asked him "if he had any particular business there," and said "if he had not he had better get out while he could." Martin told defendant to bring on his gun, to which defendant replied that he didn't need any gun for such people. Martin did not leave, but sent a friend to get his revolver for him. Some minutes thereafter, without any further conversation, defendant approached Martin, who was sitting quietly in a chair, and attempted to strike him over the head with a heavy billiard cue. Martin warded off the blows, first with his arm and later with a chair. At last he took refuge under a table, where he drew his gun and prepared to use it, when someone else placed the defendant under arrest.

A reversal of the judgment is asked upon the grounds: (1) That the court erred in admitting certain evidence as. to the raid made by Martin two weeks before; (2) that certain comments made by the district attorney during the trial were misconduct prejudicial to the defendant; (3) that the court did not properly admonish the jury at two of the adjournments taken during the trial; and (4) that the court erred in its statement of the law, relative to Martin's right to remain in the billiard-hall after being ordered to leave by the defendant, in its instructions to the jury.

Places of amusement carried on for profit are quasi public in character, and the particular business here in question was one as to which it has been declared competent for the legislative branch of the government, in the exercise of its police power, to regulate or prohibit as the exigencies of the community may require. (Ex parte Murphy, 8 Cal. App. 440, [97 Pac. 199]; Ex parte Meyers, 7 Cal. App. 528, [94 Pac. 870].) It was the right, if not the duty, of Martin as a police officer to keep all places of this kind within his township under supervision, and whenever he had reason to suppose the law was being violated therein, to enter and remain so long as was reasonably necessary to ascertain whether or not "the drunken men whom he saw in the place" procured their liquor there. (Pon v. Wittman, 147 Cal. 280, [81 Pac. 984].) The common-law doctrine as to the