Joseph P. Lacey for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

NOURSE, J.-Defendants were jointly tried on an information charging them with the murder of one William H. Reinking. The defendant Alexander was convicted of manslaughter and the defendant Avilla was convicted of murder in the second degree. Both defendants have appealed from the respective judgments following the verdicts and from the orders denying their motions for a new trial. Prior to the submission of the appeals the defendant Alexander filed a dismissal of his appeal and consideration, therefore, is given only to the appeal of the defendant Avilla.

The facts of the case are that while the two defendants were loitering upon the streets of Oakland with a number of other companions on the evening of July 5, 1922, deccased was peaceably walking along one of the main streets of that city. As he passed these defendants and their companions the defendant Avilla hit him in the leg with a rock or clod of dirt without any provocation. The deceased paid no attention to the incident, but continued on his way, and after he had gone some distance the defendant Avilla said to defendant Alexander: "Come on, Mowie, and let's get that guy," calling the defendant Alexander by his nickname. Thereupon the two defendants started after the deceased, who was then about two blocks down the street. When they arrived within a short distance of the deceased the defendant Avilla took off his coat and threw it to another one of his companions and the two defendants then crossed the street and, running part of the way, caught up with the deceased. The defendant Avilla grabbed the deceased and held him by his right hand and said to him: "You are one of these wise guys from Alameda that hit me before." The deceased replied: "No, you are badly mistaken," and smiled. He attempted to break away from the defendant Avilla and thereupon that defendant struck the deceased in the face, knocking him down. As the deceased fell the back of his head struck upon the hard pavement

of the street, causing a basal fracture of the skull. Deceased never regained consciousness, but died a short time. thereafter. It appears that the deceased was a young man of frail build; that throughout the occurrence he kept his left hand in his pocket, and that he made no resistance and no threats of any kind against either of the defendants. In fact, it appears without conflict that the attack was wholly without provocation and that it was deliberate and inexcusable.

[1] On behalf of the appellant Avilla it is argued that he should have been certified to the juvenile court upon the claim that he was under the age of eighteen years. However, the only evidence offered by this appellant to prove that he was under the age of eighteen years was so uncertain and unsatisfactory that the trial court did not abuse its discretion in accepting the conflicting evidence upon the same subject matter.

[2] It is also urged that the offense, if any, was manslaughter and not murder. In this behalf it is argued that the striking of the blow which caused deceased to fall over upon the pavement was the commission of an unlawful act not amounting to a felony, and that, therefore, the offense could be manslaughter only. But the intent to kill is plainly inferable from the evidence and the circumstances leading to the striking of the blow. It was shown without conflict that the deceased was a young man who had caused no offense or provocation for any attack upon him by these appellants; that the appellant Avilla, after having hit him with a rock or clod of dirt and having seen him go on his way without retaliation, persuaded his codefendant to join him in an attack upon the deceased, using the words: "Come on, Mowie, and let's get that guy." All the evidence goes to show that they deliberately pursued the deceased and that the blow was struck while the deceased had his left hand in his pocket and while the appellant Avilla held his right hand, thus causing him to fall backward with his head striking upon the hard pavement and without any opportunity of defending himself against the fall. It is presumed "that a person intends the ordinary consequence of his voluntary act" (subd. 3, sec. 1963, Code Civ. Proc.), and this appellant must be presumed to have known that by holding the only free hand of the deceased fatal injuries

would result from the striking of his head upon the hard pavement.

Judgment affirmed.

Sturtevant, J., and Langdon, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1923.

[Civ. No. 4124. Second Appellate District, Division Two.-May 28, 1923.]

LOULU FRASIER, Respondent, v. MAYE WITT, Appellant.

[1] LEASE SUBLETTING OF APARTMENT HOUSE-CONSTRUCTION OF CONTRACT.-A written contract between the lessee of an apartment house and two others, under which the latter are let into exclusive possession of the apartment house for a fixed term and are to receive and retain the rentals in excess of a certain stipulated sum per month, which sum they are obliged to pay the lessee on a specified day of each month of the term, it being further provided that if they should make "default" in any of their covenants the lessee, at her option, may "re-enter and take possession of said premises in entirety, and remove said second parties therefrom," constitutes an underletting of the premises, notwithstanding the parties thereto style such contract a "Contract for Services."

[2] ID.-AUTHORITY TO INSTALL MANAGER-RIGHT TO SUBLET.-Where a lease of an apartment house contains a provision against subletting or transferring the use or possession of the premises, the granting of permission to install a "manager" does not authorize the lessee to sublet to a tenant the entire premises and transfer the right of exclusive possession.

[3] ID. UNLAWFUL DETAINER DAMAGES REPAIRS SETOFF. In an action of unlawful detainer to recover possession of a lot of land, with an apartment house thereon, together with damages for unlawful detention, because of the violation by the lessee of a

1. What constitutes sublease, notes, 117 Am. St. Rep. 91; 7 Ann. Cas. 539.

covenant against subletting, the defendant is not entitled to set off the cost of the improvements made by her.

[4] ID. ADDITIONAL RENTAL PAID RECOUPMENT.-In an action of unlawful detainer to recover possession of a lot of land, with an apartment house thereon, together with damages for unlawful detention, because of the violation by the lessee of a covenant against subletting, the aggregate of certain monthly payments made by defendants to plaintiff in addition to monthly rental called for by the lease is not available as an offset or recoupment, where such payments were additional rental for the premises covering a period antedating the violation by defendants of the covenant against subletting.

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Floyd S. Sisk for Appellant.

Wm. T. Blakely for Respondent.

FINLAYSON, P. J.-This is an action of unlawful detainer to recover possession of a lot of land, with the apartment house thereon known as the Seaward Apartments, situated in the city of Venice, together with damages for unlawful withholding. The case was tried before a jury, a verdict was returned awarding possession to plaintiff and assessing her damages at $345, and from the judgment entered thereon the defendant Maye Witt appeals.

Appellant, as plaintiff's lessee, entered into possession of the premises under a written lease executed by herself and plaintiff on November 1, 1919, whereby the latter, as the lessor, leased the premises to appellant for the term of five years at a rental of $100 per month, payable monthly in advance on the first day of each and every month of the five-year term. The lease contained the following covenant on the part of appellant: "That she will not sublet, or transfer the use or possession of, said house, No. 15 Mildred Ave., Venice, California, furniture, goods and chattels, or any part of the same to any person or persons whatever; that she will carefully and economically occupy and use said house, furniture, goods and chattels, and forthwith repair all injury, and pay all damages. . . that may happen or

accrue to the same or any part thereof during the term of this lease." On December 10, 1921, appellant, as the party of the first part, and the defendants H. K. Weadon and wife, as parties of the second part, executed a written instrument bearing the caption "Contract for Services" and which contains the following provisions: "That the first party hereby engages and employs the second parties, and said second parties hereby accept said engagement and employment, upon the following terms and conditions, to-wit: That the said second parties hereby agree to manage and conduct that certain apartment house known as the Seaward Apartments, situate at No. 15 Mildred avenue, in the city of Venice, California, for the term of one year from and after the 10th day of December, 1921, and ending on the 9th day of December, 1922. That during the said term said second parties will carefully and economically manage and conduct said apartment house, and carefully and economically use and occupy said house, furniture, goods and chattels now therein situated, and shall at their own expense forthwith repair all injury, and pay all damages that may happen or accrue to the same or any part thereof during the term of this agreement. . . . At the termination of this agreement, or other sooner determination thereof, said second parties will peaceably and quietly surrender, yield and deliver up the entire possession of said house, furniture, goods and chattels, and premises above described, unto said first party, in as good condition as the same are now in, reasonable use and wear thereof excepted. . . . The second parties, for their services to be rendered and performed hereunder, are to and shall receive and retain any and all sums of moneys derived as rentals in and about said premises, in excess of the sum of two hundred seventy-five ($275.00) dollars per month; said second parties hereby agreeing to pay to said first party the said sum of $275.00 per month, in lawful money of the United States of America, upon the 10th day of January, 1922, and thereafter upon the 10th day of each and every month during the remainder of this term, a similar amount as above specified; said parties of the second part hereby and upon this date paying to the first party the sum of $700.00, to apply as follows: For the first month of said term, and for the last month thereof, and $150.00 to apply upon the October

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