doubtless is generally true, that where the traffic in such liquors is forbidden and, therefore, illicit, the business of dispensing the liquors may be carried on in a clandestine manner, and that, in some instances, in the exercise of caution, lest arrest and prosecution for the unlawful act may follow, the dispenser may refuse to make the illicit sales to some certain individuals; but even so, the place is nevertheless a public resort within the meaning of the law if there be sales of such liquors to any part of the public. It is, in brief, a place of public resort if it be a place to which any part of the public are offered the opportunity to resort for the purpose of purchasing alcoholic liquors.

It is claimed that it was prejudicial error for the court to have admitted in evidence a map purporting to be the official map of Merced County. The objections to it were that the document offered as the map was only an unauthenticated copy thereof, and that, the original having been made in the year 1909, it could not show the fifth supervisorial district as it existed at the time of the alleged commission of the offense charged. As to the first objection, it is to be answered that by the county clerk the map received in evidence was shown to be a copy of the original map as prepared by the county surveyor and accepted as the official map of the county by the supervisors. As to the second ground of objection, it is to be remarked that if the purpose of introducing the map in evidence was to show the boundaries of the fifth supervisorial district and it failed to show such boundaries as they are now established, or if there was a difference between the boundaries as delineated on the map and as they actually existed at the time the crime charged is alleged to have been committed, and such difference was of material importance to the defendant, then the latter's counsel, in their objection to the map on that ground, should have specifically pointed out such difference and called the trial court's attention thereto. The mere objection, as counsel stated it, that "the map of itself would not naturally show the supervisorial district in 1917," was not, in our opinion, sufficient to require the trial court to order the map excluded. There is no presumption that the boundaries of said district now or at the time the crime charged is alleged to have been committed are any different from what they are shown to be by the map. Indeed, if a presumption is allowable at all

with reference to the fact, we think it should be that the boundaries of the district continued to be precisely as they were when the map was made and as they are delineated thereon. (Code Civ. Proc., sec. 1963, subd. 32.) Moreover, if the map showed that South Dos Palos was not situated within the boundaries of said supervisorial district, the effect of allowing the map in evidence would the more likely be to assist rather than to injure the accused, or at least not to prejudice him.

It is claimed that the court seriously erred in admitting in evidence a document, offered by the people, purporting to be a written application by the defendant to the United States revenue office at San Francisco for a federal liquor license. While the document bore a certificate purporting to be that of the chief deputy revenue collector, setting forth that it was an exact copy of a document on file in his office and that it was "executed by G. Pera," it is very doubtful whether it was competent proof of the intent of the defendant or of the character of the business he was carrying on, since there was no proof that the name, "G. Pera," subscribed to the purported application, was signed or written by the defendant or that it was his signature, and since, furthermore, the purported certificate is not sealed or under a seal and there is no proof that the person signing his name thereto as "Chief Deputy Collector" attached his name thereto or that such name is his signature. But, in view of the other evidence. in the case, of which a brief résumé is given above, and which is amply sufficient to support the verdict, we cannot say, after considering the entire record, that the result of the error in admitting the document in evidence, if error it was, has resulted in a miscarriage of justice. (Const., art. VI, sec. 42.)

We think the testimony of the county clerk that there was no other incorporated town within the limits of the fifth supervisorial district was a proper and competent method of proving that fact. He stated, it is true, that he had no knowledge of that fact except such as he had obtained from an examination of "the records." We can conceive of no "records" which will affirmatively disclose that a particular town or city is not incorporated, but no doubt the witness knew from common notoriety that South Dos Palos was not incorporated, and we think upon such knowledge it was

proper for him to state the fact. But the courts may take judicial notice of the fact that a town or city is incorporated, if such be the fact, and in this case the court judicially knew that Los Banos was incorporated, and we may assume would have taken such notice of the fact of the incorporation of South Dos Palos, if it were an incorporated town, and have declared such knowledge to the jury, as it would have been its duty to do. No such declaration was made by the court to the jury, nor was there any request by the defendant that the court state to the jury that said town was incorporated. We are authorized to assume that if, in point of fact, the town of South Dos Palos was an incorporated town at the time the offense charged is alleged to have occurred, the defendant would have asked for an instruction to that effect. In the absence of such an instruction, the jury, without any consideration of the testimony of the county clerk upon that question, were warranted in finding that South Dos Palos was not an incorporated town at the time mentioned in the information or at the time referred to in the evidence.

It is also complained that the court erred in allowing the witness, Wegner, to testify that, on January 21, 1917-fourteen days prior to the date of the alleged commission of the offense the defendant, at his place, in South Dos Palos, sold him whisky for which he paid the defendant the sum of thirty-five cents. This testimony was properly admitted, not for the purpose of proving another and distinct offense from that charged, but to show the character of the place and the purpose of the defendant. (People v. Cavallini, 29 Cal. App. 526, 531, [156 Pac. 73].) The information, as has been shown, charges the defendant with keeping a place of public resort in the designated no-license territory for the purpose of sale and distribution therein of certain specifically enumerated alcoholic liquors, and the sale by defendant to Wegner was so near the time at which the offense charged is alleged to have been committed that most clearly testimony of said sale tended to prove that the defendant did keep such public resort at or about the time named in the information.

At the close of the case for the people, counsel for the defendant moved the court to advise the jury to acquit on the ground that the state had failed to present sufficient proof to justify a verdict of conviction. The particular point upon which counsel relied for the support of their motion was that

there was a fatal paucity of proof of the location of the defendant's alleged place of public resort within the boundaries of the fifth supervisorial district, counsel asseverating that the only proof upon that subject was in the purported map of said district above referred to and that said map failed to show that the place was within said supervisorial district. Replying to this statement by counsel, the court remarked: "Well, we have other evidence here." Counsel excepted to the remark as improper and as tending to indicate to the jury that the court was of the opinion that "the other evidence" was such as to warrant a finding that the defendant's place was situated in said district. There is no merit in this point.

Necessarily, the court was compelled to determine, in passing upon the motion, whether there was sufficient evidence in the record upon all essential points to justify the submission of the case to the jury. This would have been the necessary effect of a denial of the motion even if the court had merely denied the motion without expressing any opinion in the presence of the jury as to whether there was evidence in proof of the fact stated other than that to which counsel called special attention. But the court had the right to express its views upon the motion and its reasons for holding it to be without a substantial basis, and a party making such a motion must expect this. Unless there is plainly and obviously a total failure of proof upon some essential element of the offense charged, the defendant, when making such a motion, merely takes a chance on the allowance of the motion, and himself must assume responsibility for and abide by the consequences of a denial of the motion and the incidents attending the ruling thereon, assuming, of course, that the court, in its ruling, if it denies the motion, does not trench upon the province of the jury by discussing and expressing an opinion upon the weight or evidentiary value of the testimony. In this instance, however, it will be observed that the court made no comment or expressed or intimated no opinion upon the weight or the effect of "the other evidence" to which it referred. It merely stated that there was other evidence addressed to the point and very properly left to the jury the question whether such "other evidence" was of sufficient probative force to satisfy their minds of the existence of the fact to which it related. Besides, had counsel

C

for defendant, previously to making and arguing their motion, requested the court to exclude the jury from the courtroom during the argument on the motion, such request would undoubtedly have been complied with, and there could have been no possibility of the jury hearing anything which might be prejudicial to defendant.

It is complained that the court erred and thus seriously prejudiced the rights of the accused by instructing the jury that it was not necessary to the consummation of a crime of the character of the one with which the defendant is here charged that there should exist and be shown an intent to commit the act, and that, therefore, all that the jury were required to find, to reach a verdict of guilty, was that the defendant kept a place of public resort for the purpose of selling and distributing alcoholic liquors within no-license territory-that the specific intent with which the act was done was immaterial. We think the rule as declared by the instruction is correct, in so far as it relates to a case of this character. The decisions appear to be quite uniform upon the proposition that where, in invoking and applying the police power, the legislature has prohibited certain acts and denounced them as criminal, the mere commission of such acts, regardless of the intent with which they were committed, is sufficient to constitute the crime so denounced. There are, perhaps, certain exceptions to this rule, as, for instance, where the statute itself uses language in describing or defining the crime indicating that scienter or a specific intent to do the act was essential to constitute it a crime. But particularly in cases interdicting the traffic in intoxicating liquors the rule generally is that the mere commission of the act is sufficient to consummate the offense, and in the present case the law authorizing the establishment of "no-license territories" uses no language indicating an intention in the legislature to make the intent with which the act of keeping a resort for the purpose of selling intoxicating liquors is committed an ingredient of the offense. In Commonwealth v. Holstein, 132 Pa. St. 357, [19 Atl. 273], the court, having before it a case in which the defendant had been convicted of the unlawful sale of alcoholic liquor, said: "It is not necessary to sustain a conviction for selling intoxicating liquors under the act of 1887 for the commonwealth to prove a criminal intent. It is enough to show the sale, when the defend