rules of practice, and heard only by the courts in existence when its facts arose.

It is clear, therefore, that no constitutional difficulty would be encountered in requiring past offences to be tried under new forms of procedure, and it is equally clear that, if such offences are to be tried only under the old forms, and later offences under the new, it would or might "create endless confusion in legal proceedings." We have had no opportunity to compare in detail the forms of procedure provided in the code with those which before existed; but if they are now substantially the same, they are liable to be varied by future legislation in which event, if the construction now contended for is to prevail, offences committed before the code took effect would be tried under one form of procedure, and later offences under, it may be, a wholly different form of procedure.

The next or some subsequent legislature may direct the grand or trial jury to be summoned or impanelled in a manner wholly different from that which formerly prevailed-in which event, on the theory of the defence, it would be incumbent on the court to provide two sets of grand and trial jurors - one to inquire into and try offences committed before the code took effect, and the other to investigate and try offences of a later date. Nothing short of the most imperative necessity would justify us in so construing section six of the Penal Code as to bring about this result. Nor do we think that either its purpose or language demands that we should so construe it. Its purpose clearly was to provide that offences committed before the code took effect should be punished under the prior laws, and that those committed afterwards should be punished in pursuance of the code, thereby rendering it clear that the code was not amenable to the charge of being an ex post facto law. This being manifestly the end to be accomplished by section six, the phraseology employed to express that intent must be construed, as required by section four, according to the fair import of its terms, "with a view to effect its objects and promote justice." In order to effect the objects of that provision, and to promote justice, it is not necessary that we should adopt the construction now contended for; nor does the language of the section demand that we should so construe it. The phrase, "may be inquired of, prosecuted, and punished in the same manner as if this code had not been passed,” is and was intended to be equivalent to the phrase "may be investigated, prosecuted, and punished with like effect as if this code had not been passed," and has no reference to the mere form of procedure at the trial.

The next point is that the court erred in denying the defendant's motion for a continuance. It appears the case was first set down for trial on the 10th of February; but on the application of the defendant, and with the consent of the district attorney, the trial was postponed, and the case was again set for trial on the twelfth day of March, on which day the defendant moved for a continuance, to enable him to procure the testimony of Bryant and Sears, then supposed to be in the State of Nevada. The fact proposed to be established by these witnesses was that, on the night of the homi

cide the defendant was at the circus, in company with a woman, about the time the homicide was committed. If this fact was material, it is somewhat improbable that out of the large number of persons at the circus, none could be found to prove the presence of the defendant on that occasion, except the two witnesses now absent in another state. Moreover, the fact that Bryant was at San Francisco on the eighth of March, four days before the cause was set for trial; that he wrote to the defendant on that day, expressing his friendly feeling towards him; that on or about the very day of the trial he passed through Sacramento, on his way to Virginia City, without calling at the jail to see the defendant, are all circumstances tending strongly to cast suspicion on the good faith of the application for a continuance, and to induce the belief that it was intended only for delay. We see no just reason to infer that the court below abused its discretion in denying the application.

On the remaining point, relating to the juror McLaughlin, it is sufficient to say that it was expressly decided in People v. Fair (43 Cal. 137), that this is no ground for a new trial under our statute; and we still adhere to that opinion.

Judgment affirmed. Remittitur to issue forthwith.

THE PEOPLE v. JOHN HAGGERTY.

(46 California, 354. Supreme Court, July, 1873.)

Arson. What sufficient burning.

If an attempt is made to burn a house by lighting a fire, and the wood of the house is charred in a single place so as to destroy its fibre, the crime of arson is complete, even if the fire is then extinguished.

APPEAL from the Municipal Criminal Court of the city and county of San Francisco.

The defendant appealed.

The other facts are stated in the opinion.

S. D. Woods, for appellant.

John L. Love (Attorney General), for the people.

out.

BY THE COURT. This appeal is from a judgment pronounced against the defendant after indictment and trial for the crime of arson. The fire was set in old rags, saturated with coal oil, and lying upon the floor of the house, but was quickly discovered, and put The defendant contends that there was not a sufficient burning of the house to constitute the crime of arson, and that he could rightfully have been convicted only of an attempt to commit arson. Upon the question of what is a sufficient burning to constitute the crime,1 Mr. Bishop states the rule thus: "The word burn' enters into the definition of arson at common law; and it occurs in

1 3 Inst. 66; Dalt. 506; 1 Hale, 568, 569; 1 Hawk. P. C. c. 39, ss. 16, 17; 2 East P. C. c. 21, s. 4; Rex v. Stallion, R. & M. C. C. R. 398; Reg. v. Parker, 9 C. & P. 45; Reg. v. Russell, C. & M. 541; State v. Sandy,

6

3 Ired. 570; Com. v. Betton, 5 Cush. 427; People v. Butler, 16 Johns. 203; State v. Mitchell, 5 Ired. 350; People v. Cotterall, 18 Johns. 115.

many statutes. It means to consume by fire. If the wood is blackened, but no fibres are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however small, completes the offence, the same as of the whole. Thus, if the floor of the house is charred in a single place, so as to destroy any of the fibres of the wood, this is a sufficient burning in a case of arson." Bishop on Criminal Law, sec. 325. There was evidence tending to show that a spot on the floor was charred, so as to destroy the fibres of the wood by the fire set by the defendant; and there was no evidence directly contradicting that fact. To some of the witnesses, it is true, the spot appeared to be only blackened, and not charred. But we cannot say that the verdict was so contrary to the evidence as to justify us in reversing the judgment on that account. Judgment affirmed.

THE PEOPLE v. JAMES HAMILTON.

(46 California, 540. Supreme Court, October, 1873.) Rape.-Insufficient Evidence. Setting aside Verdict.

Although it is the practice of the appellate courts to refuse to disturb a verdict in a criminal case on the ground that it is not warranted by the evidence, when there is a substantial conflict in the evidence, yet there are exceptional cases, and one of these is, where a rape is alleged to have been committed on a child under ten years of age, and a conviction is had on her uncorroborated testimony, and she makes no complaint for two years, sustains no physical injury, makes no outery, and the defendant is her step-father, and physicians testify that it was improbable that bleeding and great bodily pain would not have followed, and the defendant testifies in his own behalf, denying the commission of the offence.

In such case the court are warranted in assuming that the jury must have rendered the verdict under the influence of passion or prejudice, particularly if one of them, during the trial, interrupts the counsel for the defence in an improper manner.

APPEAL from the County Court of Solano County.

The girl upon whom the offence was alleged to have been committed testified that the offence was committed. The counsel for the defence, on cross-examination, asked her how long defendant remained on her body? whether he threw her down right off when they went into the barn? and other questions of a like nature.

One of the jurors interrupted the counsel by saying, "You ought to be ashamed of yourself for cross-examining a little girl in that way; you had better spend your time questioning some older perThe counsel replied, "I have a duty to perform to my client and am only trying to get at the truth of this case." The juror replied, "You can do as you please; I am one of the jury.” The other facts are stated in the opinion.

son.

Alexander Campbell & Joseph McKenna, for the appellant.

J. L. Love (Attorney General) & W. S. Wells, for the people. By the Court, CROCKETT, J. The indictment charges the defendant with the crime of rape, alleged to have been committed on the person of a child under ten years of age. At the trial he was convicted of an assault with the intent to commit rape, and was sen

tenced to confinement in the state prison for fourteen years. He appeals from the judgment and from the order denying his motion for a new trial. It appeared in evidence, that the child on whom the assault is alleged to have been made, is a step-daughter of the defendant, and was residing on a farm, in the same house with the defendant and his wife, the mother of the child. At the time of the trial, she was under thirteen years of age, and was the only witness called to prove the accusation. She testified not only to the assault, with the intent to commit rape, but also to the complete accomplishment of the criminal intent. No witness was called to corroborate her testimony in any particular, as to time, place, or circumstances, or in any respect whatever, except as to her age. The defendant, who testified in his own behalf, explicitly denied the truth of her testimony in respect to the alleged assault and the perpetration of the crime. Her version of the affair is, that the offence was accomplished in the barn, about fifty yards distant from the dwellinghouse; and that immediately afterward the defendant ordered her to assist her younger brother a boy five or six years of age to carry from the barn to the house a box of soap of the usual size; that on reaching the house with the soap she found her mother engaged in her usual household duties, but did not state to her the occurrence at the barn; and on the contrary, proceeded to assist her about her household affairs as usual; that no bleeding resulted from the assault upon her, and it does not appear that she complained of any pain or injury. She further testified that she did not inform her mother of the occurrence at the barn until about two years afterward, and she assigns as a reason for her silence that he threatened to kill her if she disclosed the facts, and that she was afraid of him. Two physicians were called, who testified that though it was not impossible for a man to have carnal knowledge of a child of such tender years, it was in the highest degree improbable that bleeding and great bodily pain would not ensue. This was all the testimony; and on these facts we are asked to award a new trial, on the ground that the evidence was insufficient to support the verdict. The almost uniform practice of this and other appellate courts is, to refuse to disturb verdicts on this ground when there is a substantial conflict in the evidence. The rule is founded on the fact that the jury had the opportunity to observe the demeanor of the witnesses, and is, therefore more competent than we to decide upon their credibility. The rule is a most salutary one, and ought not to be lightly departed from. Nevertheless, there are exceptional cases, in which the preponderance of evidence against the verdict is so great as to produce a conviction that, in rendering it, the jury must have been under the influence of passion or prejudice. Such was the case of The People v. Benson (6 Cal. 221), which was also a prosecution for rape on a girl thirteen years of age, who was the sole witness to prove the charge. She testified positively to the forcible commission of the act of sexual intercourse on the occasion complained of, but admitted on cross-examination, that on many previous occasions she had had carnal intercourse with the defendant, and on none of them had made any outcry, though the defendant's wife was in the adjoining

room; nor had she ever disclosed the facts to his wife; assigning as a reason for her silence that she was afraid the defendant would kill her. The defence introduced evidence of the bad character of the prosecutrix for chastity, and that she had frequently expressed feelings of friendship for the defendant. On these facts the defendant was convicted, and on appeal this court said that the story of the girl was "so improbable of itself as to warrant us in the belief that the verdict was more the result of prejudice or popular excitement than the calm and dispassionate conclusion upon the facts by twelve men sworn to discharge their duty faithfully. . . A conviction upon such evidence would be a blot upon the jurisprudence of the country, and a libel upon jury trials." In some respects the present case is very similar to People v. Benson, just noticed. The charge rests upon the uncorroborated testimony of a child, who, at the time, was under ten years of age; and who not only made no outery, but immediately went about her daily duties, as though nothing unusual had occurred, and failed, for two years, to disclose the facts, even to her mother. When, in addition, she admits that no flow of blood followed the alleged outrage, and it does not appear that she suffered or complained of any bodily pain, it is almost inconceivable that a jury free from passion or prejudice, would not, at least, have entertained a reasonable doubt as to the guilt of the defendant. A charge of so heinous a nature, when supported by even the slightest evidence, arouses in the public mind an intense indignation against the supposed culprit; and it is not surprising that the same feeling sometimes finds its way into the jury-box. That it did so, to some extent, in the present case, is manifest from the unseemly conduct of one of the jurors, who in the progress of the trial interrupted the counsel for the defence in a most improper manner, and evinced clearly that he was under the influence of passion or prejudice, or both.

On the whole, we think the ends of justice demand that the cause shall be tried anew.

Judgment reversed, and cause remanded for a new trial; remittitur forthwith.

Neither Mr. Justice BELCHER nor Mr. Justice NILES expressed an opinion.

THE PEOPLE v. JOHN BRANNON.

(47 California, 96. Supreme Court, October, 1873.)

Evidence required to convict. - Reasonable Doubt.

In the decision of a criminal case involving life or liberty, something more than a mere preponderance of evidence is required to convict the defendant. There must be in the minds of the jury an abiding conviction to a moral certainty of the truth of the charge, derived from a comparison and consideration of the evidence.

APPEAL from the District Court of the Fifth Judicial District, county of San Joaquin.

The defendant was indicted for the crime of murder, committed