did the damage came from the defendants' rice-field. It is argued that the water probably came, through seepage or underground flow, from a main canal, a lateral, and other rice-fields. Such argument goes to the weight of the evidence rather than to its sufficiency. It may be stated, however, that the evidence introduced by plaintiff shows that the marked rise of the water-table occurred only in the year 1920, the one year in which defendants raised rice, while the other possible sources of the water existed prior and subsequent to that year. Since the weight of the evidence is exclusively for the determination of the trial court, there is no reason to state the evidence given in contradiction of the foregoing.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.

[Crim. No. 694. Third Appellate District.-May 31, 1923.] In the Matter of the Application of JOHN BOGDEN for a Writ of Habeas Corpus.

[1] CRIMINAL LAW SENTENCE COMMUTATION BY GOVERNOR.-While the Governor may reduce the length of service under a state prison sentence, he is without power to impose one; and a commutation of the term of a person sentenced to a state prison does not have the effect of nullifying the sentence imposed by the court, or of substituting therefor a new sentence by the Governor, but it merely reduces the length of time to be served under the sentence, and the prisoner's rights after the commutation are the same as they would be if he had been sentenced originally to the commuted term.

[2] ID. CONSECUTIVE TERMS-COMMUTATION-CONSTRUCTION OF ORDER. Where a prisoner sentenced to a term of fourteen years in a state prison is penalized for escaping from prison by forfeiture of all credits earned and to be earned by him and is also tried in a court for such escape, is convicted and is sentenced to imprisonment for a term of four years, the imprisonment to commence at the expiration of his term of fourteen years, but the Governor commutes "the two sentences" of the prisoner "to a single term of ten years including time served," the order of commutation being predicated upon the fact that the imprisonment

was excessive, the commutation will be construed as reducing the longer term to ten years and, in effect, making the two terms run concurrently.

APPLICATION for a Writ of Habeas Corpus to secure release of petitioner from state prison. Writ denied.

The facts are stated in the opinion of the court.

John Bogden, in pro. per., for Petitioner.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

FINCH, P. J.-Petitioner prosecutes this writ of habeas corpus to obtain his release from state prison on the ground that the term of his imprisonment has expired.

He was sentenced to a term of fourteen years' imprisonment for burglary of the first degree. He was received at the prison July 7, 1914. He escaped therefrom December 7, 1914, and was returned thereto February 27, 1915. As a penalty for such escape, the state board of prison directors, on March 3, 1915, duly forfeited all credits earned and to be earned by him. He was also tried in court on a charge of having so escaped and was convicted and sentenced to imprisonment for a term of four years, the imprisonment to commence at the expiration of his term of fourteen years for burglary.

December 20, 1922, the Governor of the state commuted petitioner's term of service to a total of ten years. The parts of the commutation material here are as follows: "The prisoner was punished once for his escape from prison by forfeiture of his credits amounting to five years and two months and was given a sentence of four years additional upon his conviction in court. . . . Unless Bogden is given relief through executive clemency he will not be eligible for parole until 1930. It was for this reason that a majority of justices of the supreme court and the peace authorities who prosecuted Bogden joined in recommending commutation of his sentence, as excessive. Now therefore, I, Wm. D. Stephens, Governor of California, do hereby commute the two sentences of the said John Bogden to a single term of ten years including time served.”

Petitioner contends that the Governor "aggregated his two sentences to one sentence of eighteen years, and commuted this to a sentence of ten years. The credits on aggregated eighteen years amount to six years and ten months, and the credits forfeited by the board of prison directors, on petitioner's previous sentence of eighteen years, were five years and two months. Therefore, petitioner is entitled to twenty months credits on his previous sentence of eighteen years, and those credits shall be deducted on his present sentence of ten years, which was fixed by the Governor. Or, if petitioner's previous sentence is legally dead, then any action of the state board of prison directors taken on his previous sentence is null and void, and the petitioner not having lost any of his credits on his present sentence of ten years, therefore, he is entitled to all his credit deductions which are allowed by law on his present sentence of ten years."

[1] The commutation did not have the effect of nullifying the sentences imposed by the court or substituting therefor a new sentence by the Governor, but it merely reduced the length of time to be served under those sentences. While the Governor may reduce the length of service under a sentence, he is without power to impose one. In Duchay v. Thompson, 223 Fed. 305 [138 C. C. A. 547], two sentences of four years each, running consecutively, were commuted to run concurrently. The court said: "The executive has superimposed its mind upon the judgment of the court; but the sentence remains, nevertheless, the judgment of the court, and not of the executive, and is subject to the regulations of law respecting its enforcement." Petitioner's rights after the commutation are the same as they would be if he had been sentenced originally to ten years' imprisonment. Of course, the time heretofore served is to be deducted from the ten years to whien his imprisonment has been reduced by the commutation.

[2] The only uncertainty as to the meaning of the commutation arises out of the fact that petitioner's credits on the term of fourteen years were forfeited while those on the term of four years were not. Had each term been commuted to a shorter period, to run consecutively, petitioner would have been entitled to credits on the term last imposed by the court. In consideration of the reasons, as stated in the order

of commutation, for the exercise of executive clemency and the absence of specification of the sentence intended to be reduced, a reasonable construction of the commutation is that it was the intention to reduce the longer term to ten years and, in effect, make the two terms run concurrently. So construing the commutation, petitioner's term of imprisonment has not expired.

The writ is denied.

Burnett, J., and Hart, J., concurred.

[Civ. No. 2344. Third Appellate District.-June 2, 1923.] CONTRACTORS AND BUILDERS SUPPLY COMPANY (a Corporation), Respondent, v. A. B. KLAY, Appellant.

[1] MECHANICS' LIENS-FORECLOSURE-FINDINGS-PAYMENT-UNWARRANTED JUDGMENT AGAINST CONTRACTOR.-In this action for the foreclosure of a lien for materials used in the construction of a dwelling, wherein the judgment denied to plaintiff the claim of lien and acquitted the defendants, other than the contractor of any liability, but awarded judgment against the contractor, the judgment should have been in favor of all the defendants in view of the finding that a certain sum paid to plaintiff out of the sum paid to the contractor by the other defendants more than satisfied the amount due plaintiff, notwithstanding the unintelligibility of other findings.

APPEAL from a judgment of the Superior Court of Stanislaus County. L. W. Fulkerth, Judge. Reversed.

The facts are stated in the opinion of the court.

Griffin, Boone & Boone for Appellant.

J. B. Jennings for Respondent.

HART, J.-This action is based on the mechanics' lien law and is for the foreclosure of a lien upon a quarter-section of land belonging to the defendants above named other than the defendant Klay, and situated in Stanislaus County, said

lien arising by reason of the furnishing by plaintiff of certain materials to be used, and which were used, in the construction of dwelling-house on said real property. The judgment denied to the plaintiff the claim of lien against said property and acquitted the defendants, other than defendant Klay, of any liability upon the claim for which the lien was sought to be asserted, but awarded the plaintiff judgment against the defendant Klay in the sum of $328.

This appeal, supported by the judgment-roll alone, is by the defendant Klay from so much of said judgment as awards, as against him in favor of the plaintiff, the said sum of $328.

The defendant Klay, a contractor, entered into a contract with the owners of the said real property for the construction of a one and one-half story dwelling-house on said land. The complaint states that, under an agreement with Klay, plaintiff furnished materials, consisting of lumber and mill-work, to be used, and which were actually used, in the construction. of said building, of the total value of $1,580.40, the same to be paid for in cash as they were delivered; that of said amount the sum of $1,144.50 was paid, and that there remained due and unpaid of said amount, at the time said dwelling-house was completed, on the first day of March, 1920, the sum of $433.90; that, on March 17, 1920, the plaintiff filed and recorded, in due and legal form, a claim of lien upon said dwelling-house and land in said sum of $433.90.

The answer specifically denies all the allegations of the complaint and sets up a special defense to the effect that the defendants had fully discharged and satisfied the claim sued for, and, in fact, had paid the plaintiff more than was its due on the claim upon which it declares.

The court found that the materials were furnished by plaintiff as stated in the complaint; that all of said materials were actually used in the construction of the building likewise mentioned, and that they were of the value of $1,578.40; that plaintiff duly and in proper form filed its claim of lien on the said building and the real property upon which it was erected in the sum of $433.90, alleged to be the balance due for said materials at the time of the completion of said building, but found that the claim so filed involved an overcharge of $105.90 and that the true balance claimed by plaintiff is and was the sum of $328. These findings were