It is contended by appellant that the verdict is not supported by the evidence because it tends to establish burglary as well as grand larceny. If it be conceded that larceny is not included in a charge of burglary, and that evidence of a conviction of one of these crimes would not sustain a plea of former conviction, upon a trial of a charge of the other (People v. Devlin, 143 Cal. 128, [76 Pac. 900]), the jury may, nevertheless, determine from evidence which tends to sustain both which crime was actually committed. The finding upon such an issue is one of fact and will not be disturbed, if there is evidence to support it.

Another reason assigned for reversal on the ground that the evidence does not support the verdict is, that the testimony of the witnesses for the prosecution was conflicting, and that the preponderance of such evidence shows the defendant to be innocent rather than guilty. An argument based upon the weight of evidence, which is admittedly conflicting, will not be considered by an appellate court in reviewing the conclusions of a jury, and it is not material, in the application of this rule, whether the conflict be between the testimony of witnesses for opposite sides or between witnesses all on the same side. The rule of finality and conclusiveness of the finding of fact by the jury or the trial court is the same in either case.

The instruction which appellant contends is erroneous because an invasion of the province of the jury, and violative of the provisions of section 19 of article VI of the state constitution, "that judges shall not charge juries with respect to matters of fact," is substantially section 1847 of the Code of Civil Procedure, to which has been added certain language which was held to be proper by the supreme court in People v. Amaya, 134 Cal. 539, [66 Pac. 794], and People v. Miles, 143 Cal. 640, [77 Pac. 666]. In the first of these cases the court considered the addition of the words "his interest in the case, or his prejudice against one of the parties"; and in the second, "his degree of intelligence." The cases cited by appellant are distinguished in these opinions, and in the latter case it is said that the trial court is not limited in its instructions as to the effect of the circumstances surrounding the witness, to those facts and circumstances enumerated in section 1847.

The instruction defining the word "abet" was correct, and this is true of that relating to a conviction upon the testimony of an accomplice. The latter instruction is to be distinguished from the one before the court in People v. Compton, 123 Cal. 403, [56 Pac. 44]. The objection to the instruction.in that case was that it informed the jury the corroborative evidence required by section 1111 of the Penal Code was sufficient "if it in any way tended to connect the defendant with the commission of the crime." The words "in any way" do not appear in the instruction before us, which is substantially the same as the one approved in People v. Balkwell, 143 Cal. 259, 264, [76 Pac. 1017].

Possession of property recently stolen puts upon the possessor the burden of explaining such possession, and if his explanation fails to show that the property was honestly obtained, this may be considered by the jury as a circumstance tending to show his guilt, and the instruction to this effect was correct. It was not open to the objection that a conviction might be rested upon this possession alone. (People v. Wilson, 135 Cal. 331, [67 Pac. 322].)

The jury were instructed at the request of the people "that if you believe from the evidence, beyond a reasonable doubt, that the defendant feloniously stole the personal property of the Los Angeles Elastic Pulp Plaster Company, or any part thereof, as charged in the information, or aided, abetted,' etc., "then you should find the defendant guilty." It is contended that the defendant could not have been found guilty of the crime charged in the information if he had stolen "any part" of the property. The jury were instructed as to the distinction between grand and petit larceny, and the verdict is "guilty of grand larceny." If the verdict had been one of guilty of petit larceny, the defendant would have been none the less guilty, and such a verdict might have been rendered under the information. The property alleged to have been stolen was such that proof of its value was necessary to determine whether the crime committed was grand or petit larceny.

We see no prejudicial error in the record, and the judgment and order are therefore affirmed.

Allen, P. J., and Shaw, J., concurred.

[Crim. No. 94. Third Appellate District.-October 5, 1909.] THE PEOPLE, Respondent, v. E. DISPERATI, Appellant. CRIMINAL LAW-GRAND LARCENY-SECOND TRIAL-PLEA OF ONCE IN JEOPARDY-DISCHARGE OF JURY FOR FAILURE TO AGREE SUFFICIENCY OF RECORD.-Upon a second trial for grand larceny, a plea of once in jeopardy on the ground of the discharge of the jury on the first trial for failure to agree cannot be sustained, where the record shows that they were unable to agree. The record is not required to show that the court heard legal evidence, or tried any issue, or found any fact, or stated the reasons for discharging the jury.

ID.-STATEMENT BY JURORS OF INABILITY TO AGREE.-Where it appears that the jurors stated their inability to agree, it cannot be said that their statements were unworthy of belief; but it must be assumed that the court was entirely satisfied that any further effort to secure a verdict would be futile.

ID.-PRESUMPTIONS UPON APPEAL-BURDEN TO SHOW ERROR-PRESUMED CONSENT TO DISCHARGE OF JURY.-Apart from the showing in the minutes as to the failure of the jury to agree, in view of the presumption in favor of the regularity of the proceedings of courts of record, and of the rule that the burden is upon the appellant to show error affirmatively, it would be presumed in favor of the judgment, when nothing appears in the record to the contrary, that the defendant consented to the discharge of the jury.

ID. DISMISSAL OF INFORMATION AFTER FAILURE TO AGREE "FURTHERANCE OF JUSTICE"-ANOTHER PROSECUTION NOT BARRED.-The dismissal of an information for a felony after the failure of the jury to agree, where it is "in furtherance of justice," in pursuance of section 1385 of the Penal Code, is not a bar to another prosecution for the same offense, under the provisions of section 1387 of the same code. ID.-FAILURE OF TRIAL-CONSENT OF DEFENDANT TO DISMISSAL NOT RE

QUIRED. Although, where the defendant has been convicted under a first information, it can only be set aside at his instance, and would bar another prosecution if set aside without his consent, yet, when there has been a failure of trial by disagreement of the jury, the status is the same as if there had been no trial; and no consent or act of the defendant is required to justify the court in dismissing the information under section 1385 of the Penal Code. ID. "FURTHERANCE of Justice”—JUDICIAL DISCRETION. Since the legislature has not defined the expression "in furtherance of justice," as used in section 1385 of the Penal Code, it is left for judicial discretion, exercised in view of the constitutional rights of the de

fendant, and the interests of society to determine what particular grounds warrant the dismissal.

ID. INSUFFICIENT GROUND-DEPLETION OF COUNTY TREASURY.—It is not a sufficient ground for the dismissal that a continuance of the action would deplete the county treasury. The right of a defendant charged with crime, to a speedy trial without unnecessary delay and embarrassment, is as urgent and important as that of a creditor of the county to have his just demands promptly paid. ID. STATEMENT OF "REASONS FOR DISMISSAL"-MANDATORY PROVISION -PLEA OF "ONCE IN JEOPARDY" SUSTAINABLE.—The requirement of section 1385 of the Penal Code, that "the reasons of the dismissal must be set forth in an order entered upon the minutes," is mandatory, and no substantial departure therefrom should be tolerated. When no reasons are so stated, a plea of "once in jeopardy," by virtue of the unlawful dismissal, is sustainable.

ID.-FORM OF PLEA OF "ONCE IN JEOPARDY"-Surplus STATEMENTS NOT VITIATING. The fact that the plea of "once in jeopardy" goes be yond the requirement of subdivision 4 of section 1017 of the Penal Code, and sets forth all the facts including the times, places and courts in any way relating to the plea, and thereby sets forth more than the law demands, does not deprive the defendant of the right to have it considered.

ID.-OBJECTION TO ILLEGAL DISMISSAL NOT "TECHNICAL”—AUTHORITY OF LEGISLATURE.-The objection to the illegal dismissal for failure to state the reasons thereof in the minute order, is not "technical," but relates to an important rule of procedure established by the legislature; and it cannot be held harmless, without an invasion of the authority of the legislature, as a co-ordinate branch of the gov ernment.

ID.-ERROR IN INSTRUCTIONS-CONFUSING "GRAND LARCENY" WITH "RE

CEIVING STOLEN PROPERTY."-Where there was no evidence of the actual participation by the defendant in the original taking of the stolen property, and the offense of the defendant under the evidence may have been merely that of receiving stolen property, it was prejudicially erroneous to give instructions to the jury as to his conviction for grand larceny, which confuses that crime with the crime of receiving stolen property, and calls for his conviction, although presupposing that the larceny was committed by another person before defendant had guilty knowledge of the same or culpable connection with it, when he received the stolen property into his possession.

ID.-IMPROPER REFUSAL OF REQUESTED INSTRUCTION-ACQUITTAL ON PROOF ONLY OF DISTINCT OFFENSE.-An instruction requested by the defendant that if the jury "believe that the only part that defendant took in the alleged larceny was that he, after the said mules were stolen, aided or assisted the person who stole them, in selling or disposing of them, or participated in the profits thereof,

he cannot be convicted of grand larceny, and in such case you will acquit the defendant," states a correct principle of law, and should have been given.

ID. SUGGESTION AS TO FURTHER PROSECUTION-RECEIVING

STOLEN

PROPERTY. It appearing that the evidence of larceny by the defendant is slight, and that there is more evidence of the crime of receiving stolen property, it is suggested that if it be deemed advisable to prosecute the defendant for the latter offense, the former conviction of grand larceny would not be a bar to such prosecution.

APPEAL from a judgment of the Superior Court of Madera County and from an order denying a new trial. John G. Covert, Judge presiding.

The facts are stated in the opinion of the court.

Robert L. Hargrove, and George W. Mordecai, Jr., for Appellant.

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

BURNETT, J.-In a brief of exceptional merit it is earnestly contended by appellant that he has not had a fair trial. "Prejudiced," declare his counsel, "by the misinstructions of the court and by the court's refusal to give proper instructions and by the outrageous and villainous misconduct of a juror, the defendant was deprived of a just consideration of his case. The verdict is contrary to the evidence because there is no evidence that defendant abetted or advised anyone to steal. The verdict is contrary to the facts, because receiving or disposing of stolen property is not larceny. The verdict is contrary to law because the defendant has been once in jeopardy."

These various propositions are methodically presented with citation of numerous authorities. The consideration of some of the points discussed is deemed unnecessary, but the following we regard as of vital importance:

1. On December 18, 1907, Miller & Lux caused a complaint to be filed in the justice court against defendant, charging him with the larceny of four mules branded HH. On January 23, 1908, defendant was held to answer, and on the 30th following an information was filed in the superior court to, which a plea of not guilty was entered. On April 6, 1908, the