seems to us, furnishes a safe guide to a solution of the question here. The contract plainly shows that the land was to be planted to a specific crop and none other. Both parties understood this and contracted with reference to that understanding. Plaintiff's compensation was to be measured by an agreed per centum of this specific crop and not otherwise. Given land suitable for growing beans; condition of soil, climate, moisture, etc., favorable to the production of a profitable crop, and nothing supervening to prevent such result except the failure of the contracting party to do what his contract required of him, it seems to us, we have a clear case where the loss to the lessor "is such as might naturally be expected to follow from the breach," and that he would be entitled to the "profits which would ordinarily and naturally, and in the usual course of things have been derived from performance," and furnishes an instance where "the loss flows directly and naturally from the breach of the contract itself" and is recoverable, since the loss is "naturally incident to the contract and may be fairly supposed to have been within the contemplation of the parties when it was made."

In Rice v. Whitmore, 74 Cal. 619, [5 Am. St. Rep. 479, 16 Pac. 501], defendant had leased certain land to plaintiff on which the latter was to sow grain, paying one-fourth of the grain raised as rental. Defendant failed to give plaintiff possession of the land and plaintiff recovered the value of a crop that might have been raised on the land by an average farmer during the term, less the cost of raising it. In the case of Allen v. Los Molinos Water Co., 25 Cal. App. 208, [143 Pac. 253], defendant was under contract to furnish plaintiff water for irrigating his crop of potatoes. Defendant failed to keep its contract and plaintiff lost his crop. It was held that under section 3300 of the Civil Code, the measure of damages was the market value of the potatoes, at the selling place, which would have been produced had defendant kept its contract, less the expense of growing and marketing the crop. Similarly held in a similar case— Chambers v. Belmore Land & Water Co., 33 Cal. App. 78, [164 Pac. 404], applying the rule as stated in Teller v. Bay, 151 Cal. 209, [12 Ann. Cas. 779, 12 L. R. A. (N. S.) 267, 90 Pac. 942]. A somewhat analogous case is Holt Mfg. Co. v. Thornton, 136 Cal. 232, [68 Pac. 708]. There the con

tract was to commence harvesting the wheat on the 5th of July, whereas the plaintiff did not begin the work until the 15th. Plaintiff sued for services and defendant counterclaimed that by reason of plaintiff's delay in commencing the work the wheat was shelled out and lost to defendant. Plaintiff claimed that the loss was too remote and speculative to be considered as the result of its breach. It was held otherwise.

Said the court: "This loss was not speculative or remote; and although it was, no doubt, somewhat difficult to fix the amount of the loss with great accuracy, still there was ample evidence to show an amount of damage exceeding that found by the jury. It has often been held that damages may be recovered for the destruction of merely immature growing crops although there was no absolute certainty that they would ever mature; for 'he who breaks the contract cannot wholly escape on account of the difficulty which his own. wrong has produced of devising a perfect measure of damages.'" Citing Shoemaker v. Acker, 116 Cal. 239, [48 Pac. 62].

Error is alleged in refusing to allow defendants to show in the cross-examination of plaintiff, when called as a witness, that plaintiff was a subtenant of the owner of the land and was released by his lessor from payment of rent. The relation of plaintiff to his lessor was immaterial. (Holt Mfg. Co. v. Thornton, supra.)

The judgment is affirmed.

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

[Crim. No. 713. First Appellate District.-January 28, 1918.]

THE PEOPLE, Respondent, v. CHARLES SMITH, Appellant.

CRIMINAL LAW-CARRYING CONCEALED WEAPONS WITHOUT LICENSECONSTITUTIONALITY OF ACT OF 1917.-Section 3 of chapter 145 of the Statutes of 1917 (Stats. 1917, p. 221), providing that every person who carries in any municipal corporation any pistol or other firearm concealed upon his person without a license, shall be guilty of a misdemeanor, and of a felony if previously convicted of any

felony or of any crime made punishable by the act, is a reasonable police regulation.

ID.-HEAVIER PENALTY FOR PREVIOUS OFFENDERS-ACT NOT CLASS LEGISLATION. Such act is not objectionable as class legislation, from the fact that it provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, since it operates uniformly upon all persons in the same category and there being a reasonable basis for the classification. ID.-ACT NOT EX POST FACTO.-Such act is not, on account of the provision prescribing a heavier penalty for one previously convicted of a felony, an ex post facto law.

ID. CARRYING OF WEAPONS SUBJECT FOR STATE REGULATION.-The subject of carrying weapons is a proper one for state legislation, and is not purely a municipal affair.

APPEAL from a judgment of the Superior Court of Alameda County. F. B. Ogden, Judge.

The facts are stated in the opinion of the court.

R. M. Royce, for Appellant.

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

LENNON, P. J.-The defendant was charged with the violation of section 3 of chapter 145 of the Statutes of 1917. The information also charged him with a prior conviction of grand larceny. Upon his arraignment the defendant pleaded guilty of the crime charged, and admitted the prior conviction. The indeterminate sentence provided by law was thereupon imposed, directing that the defendant be taken and confined in the state prison at San Quentin for a period not to exceed five years.

This is an appeal from the judgment in which the only question raised is as to the constitutionality of the section of the statute under which defendant was charged and convicted.

That section reads: "Every person who carries in any city, city and county, town or municipal corporation of this state. any pistol, revolver, or other firearm concealed upon his person, without having a license to carry such firearm as hereinafter provided in section six of this act, shall be guilty of a misdemeanor, and if he has been convicted previously of

any felony, or of any crime made punishable by this act, he is guilty of a felony." (Stats. 1917, p. 221.)

The section in question is a reasonable police regulation. (Ex parte Cheney, 90 Cal. 617, [27 Pac. 436]; Ex parte Luening, 3 Cal. App. 76, [84 Pac. 445].)

While the statute provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, nevertheless it operates uniformly upon all persons in the same category, and there is a reasonable basis for the classification. Therefore it is not objectionable as class legislation.

Nor does the provision prescribing a heavier penalty for one previously convicted of a felony render the law ex post facto. "A law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender's conduct in the past to be taken into the account and the punishment to be graduated accordingly." (Ex parte Gutierrez, 45 Cal. 429.)

The objection that the subject of carrying weapons is purely a municipal affair is not well taken. The prevention and punishment of crime is always a proper subject for state legislation.

Judgment affirmed.

Beasly, J., pro tem., and Kerrigan, 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 March 28, 1918.

[Civ. No. 2272. First Appellate District.-January 30, 1918.] JOHN GORDON, Respondent, v. CHARLES R. PERKINS et al., Appellants

NEW TRIAL-CHANCE VERDICT-FINDING ON CONFLICTING EVIDENCEAPPEAL.-Where, on a motion for a new trial on the ground of misconduct of the jury, the court finds upon conflicting evidence that the jury did not determine the amount of its verdict by chance, the finding will not be disturbed on appeal.

INJURIES TO REAL PROPERTY-DAMAGES.-In an action for damages for injuries to a small portion of a quarter-section of land, the defendant cannot complain that the damage was measured by the amount of damage to the portion destroyed and not the depreciation of the entire tract.

APPEAL from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge.

The facts are stated in the opinion of the court.

J. A. Pettis, Preston & Preston, and M. H. Iversen, for Appellants.

Robert Duncan, for Respondent.

KERRIGAN, J.-This is an appeal from a judgment against defendants in an action wherein plaintiff sought to recover damages for injuries to certain real property committed by the defendants.

Such of the facts as are necessary to an understanding of the points herein discussed will be stated in the course of the opinion.

In his brief the plaintiff makes a preliminary motion to dismiss the appeal upon the ground that the notice to the clerk to prepare the transcript on appeal was not given within the time specified in section 953a of the Code of Civil Procedure after notice of the entry of judgment. As to that motion the conclusion we have reached on the merits of the appeal renders unnecessary a consideration of that question.

The first point presented for a reversal of the judgment is that the trial court erred in denying the motion for a new trial made on the ground of the misconduct of the jury, the defendants claiming that the jury determined the amount of its verdict by a resort to chance.

According to the affidavits filed by the defendants on said motion, the verdict of the jury was reached by each juror specifying a sum to which he believed the plaintiff entitled. (a maximum of one thousand dollars having first been agreed upon), dividing the aggregate of the figures thus obtained by 12, and adopting the quotient as the amount of the verdict. Assuming that a verdict reached in this manner is one found by chance, and will be set aside (Dixon v. Pluns, 98 Cal. 384,