upon affiant went into the office of the Clerk of the State Supreme Court, in the same building, and on the same floor thereof, to leave there the requisite number of copies of said transcript for said court, and the official then in charge of said office was Mr. I. Erb. That affiant left with said Erb said copies, and also said Erb took said original transcript on appeal and the requisite number of copies thereof for this court, and told affiant that he would deliver the same to the Clerk of this court as soon as he returned, and affiant is informed, and therefore alleges that said Erb did as he promised."

The fact is not disputed that the transcript was not filed within forty days after the perfection of the appeal, as required by rule 2, and the further fact that at the precise time of the filing of the motion to dismiss the appeal the transcript had not been actually filed is not disputed.

Rule 5 of the supreme court provides, among other things, that "if the transcript, or points and authorities, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be a sufficient answer to the motion."

Briefly recapitulating the facts, we find that counsel for appellants served the transcript at about 10 o'clock of the twenty-first day of May, and the notice of motion to dismiss the appeal was served on appellants' counsel at twenty-three minutes to 1 o'clock P. M., of the same day. Counsel for appellants was at the office of the clerk of the court of appeal at about quarter to 1 P. M., and, the clerk of said court not being present, he left the original, with the requisite number of copies, with a deputy clerk of the supreme court, whose office is located in the same building and on the same floor, with the request that he file said transcript for him in the first-mentioned office as soon as the clerk thereof returned thereto, and that said deputy agreed to and did so file it. But it seems that in what appears to have been a contest of speed between opposing counsel to reach the office of the clerk of the district court of appeal for "first place," the attorneys for the respondent were victorious, only by a "neck," however. It is probable that had the clerk been in his office when counsel for appellants first appeared there, the transcript would have at least been filed before the motion to dismiss was filed. Under these circumstances, however, it is

asked that the appellants be deprived of their right to have the merits of their appeal passed upon by this court.

We recognize the proposition that the rules adopted by the supreme court for the government of the practice in the appellate courts of this state are as essential a part of the procedure in said courts as are the rules of practice and procedure laid down by the legislature, and that they should in all cases be substantially followed and enforced. But we think that, by an equitable construction of rule 5, with reference to the circumstances of this case, appellants may be relieved of the severe penalty which counsel for the respondent ask us to impose upon them. We think that counsel for appellants offers a reasonable excuse for the delay in the preparation of his transcript so that it was not in condition to be served and filed within the forty days prescribed by rule 2, supra, and we further think that, inasmuch as it appears, with reasonable certainty, from the fact of the service of the transcript before notice of the motion was given, that appellants intended, when making the service thereof, to file said transcript the very same day of such service, and from the fact that they did actually file it on that day, it would do no violence to rule 5 to hold that the transcript was on file at the time of the noticing and filing of the motion to dismiss within the spirit, if not within the strict letter, of said rule.

In Vinson v. Los Angeles Pac. R. R. Co., 147 Cal. 483, [82 Pac. 54], it is said: "Whether or not circumstances of a particular case are such that the mistake or inadvertence should be excused is a question the determination of which must, of necessity, be left largely to the court to which application is made, and it is well settled that this court will not interfere with the exercise of the discretion of that tribunal, except in a case where a clear abuse of discretion is apparent. Particularly is this so where the discretion is exercised in favor of the granting of the relief sought, as such action tends to bring about a conclusion on the merits, which is always to be desired"; citing O'Brien v. Leach, 139 Cal. 220, [96 Am. St. Rep. 105, 72 Pac. 1004]. It is further said in that case that "the application for relief was made so promptly after the expiration of the ten days that no appreciable injury could have been caused to plaintiffs by the delay."

The transcript here was filed and the notice to dismiss given in such close proximity in time that it cannot be said that the granting to appellants relief from their apparent default has resulted or will result in injury to the respondent.

The right of appeal is conferred by the constitution, and statutes and rules of procedure for its exercise are to be liberally construed. (Estate of Nelson, 128 Cal. 242, [60 Pac. 772].) There is no denial here of any of the matters set forth in the affidavit of counsel for appellants with respect to the causes leading to the delay in the preparation of his transcript. While we do not wish to be understood as holding that the fact that an attorney is busy attending to other professional engagements is sufficient of itself to excuse a default such as is sought to be taken advantage of here, it is nevertheless a circumstance to be considered, and as considered with other facts set out in the affidavit of appellants' attorney, it must figure to some extent in the determination of the question whether the appellants shall, in this case, be denied their remedy by appeal which the constitution expressly grants to them.

The motion here, it must be remembered, is an original proceeding in this court in a case appealable directly to a district court of appeal, and we think that, while the rules of the court cannot under any circumstances be arbitrarily overlooked or set aside, a reasonable discretion should be committed to the district courts of appeal in the decision of questions involving the application of those rules in cases coming to said courts by direct appeal.

Even if, in reaching the conclusion upon this motion to which the circumstances lead us, rule 5 has been given a little elasticity, the respondent must in fairness concede that the result is just and "tends to bring about a conclusion on the merits which is always to be desired." (Vinson v. Los Angeles Pac. R. R. Co., 147 Cal. 483, [82 Pac. 54].)

For the foregoing reasons, the motion to dismiss the appeal is denied.

Chipman, P. J., and Burnett, J., concurred.

[Crim. No. 105. Third Appellate District.-November 9, 1909.] THE PEOPLE, Respondent, v. R. E. CAHILL, Appellant. CRIMINAL LAW-GRAND LARCENY-STEALING OF AUTOMOBILE-SUPPORT OF VERDICT-CIRCUMSTANTIAL PROOF-PRESENCE AT PLACE OF THEFT POSSESSION-CONFESSION.-Upon the trial of a defendant charged with grand larceny in the stealing of an automobile left at a garage in Sacramento by the owner for the night, which could not be found at 9 o'clock the next morning, evidence that the defendant was seen at the garage at 5 o'clock of that morning, and was afterward found in possession of the automobile in Oakland and San Francisco and gave an untruthful account of the origin and extent of his possession thereof, was sufficient to support the verdict independently of his confession, which, in itself, was enough to persuade the jury of his guilt, and justify the verdict returned. ID.-PROOF OF CORPUS DELICTI.-The corpus delicti was fully proved without the aid of the defendant's confession. It consisted in the asportation of the machine from the garage by some one, manifestly without the consent of the owner or of the manager of the garage. ID.-INSPECTION OF AUTOMOBILE BY COURT AND JURY-CONSENT OF COUNSEL ORDER OF COURT-LAWFUL PROCEEDING EVIDENCE NOT TAKEN.-Where, at the trial by express consent of counsel for both sides, the court made an order for inspection of the automobile by the jury in front of the courthouse, which was lawfully conducted under the control of the judge, and in presence of the judge, counsel, court stenographer, and an officer in charge of the jury, and no evidence was actually taken out of court, beyond the legitimate scope of such inspection, defendant cannot claim that such inspection was the taking of evidence out of court.

ID.-EVIDENCE-DRIVING GLOVES LEFT IN AUTOMOBILE BY OWNERPOSSESSION BY DEFENDANT CIRCUMSTANCE TENDING TO SHOW LARCENY CHARGED.-Where the owner of the machine testified that he left driving gloves in his automobile left by him at the garage, and identified the same as those found in the possession of the defendant when he was arrested, the court properly allowed such proof, and admitted the gloves in evidence, as part of the same transaction connected with the larceny charged as not only tending to show defendant's guilty knowledge, but also as a circumstance tending to show that defendant stole the machine.

ID. DIFFERENT OFFENSES COMMITTED AT SAME TIME AND PLACE-ADMISSIBILITY OF CRIME NOT CHARGED.-Where an accused person has committed two offenses at the very same time and place, so that they constitute the same, or approximately the same, transaction, evidence of the crime not charged is admissible if it tends to show motive or any other fact relevantly bearing upon the crime charged.

ID. CONFESSION PROPERLY ADMITTED.-Where the evidence offered on the question of the admissibility of the confession of guilt made by the defendant tended to show that it was freely and voluntarily made, without inducements or threats held out to him, it was properly admitted in evidence.

ID.-COMPETENCY OF CONFESSION A QUESTION OF LAW-EVIDENCE ASSAILING IT AFTER RULING INADMISSIBLE.-The question whether a confession has been obtained under such circumstances as to render evidence thereof competent or incompetent is one of law for the court; and when the court has ruled that it is competent and admissible and has received the same in evidence, subsequent testimony offered by the defendant to show that it was inadmissible because not freely and voluntarily made, but was wrung from him, was properly excluded.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. J. W. Hughes, Judge.

The facts are stated in the opinion of the court.

A. B. Reynolds, for Appellant.

U. S. Webb, Attorney General, and Eugene S. Wachorst, District Attorney, for Respondent.

HART, J.-The defendant was convicted of the crime of grand larceny under an information charging him with that offense, and he presents this appeal from the judgment of conviction and the order denying him a new trial.

The points urged for a reversal are: 1. That the evidence is insufficient to support the verdict; 2. That the jury received evidence out of court; 3. That the court erroneously permitted proof of another and distinct offense than that charged; 4. That the alleged confession of the accused was not free and voluntary, and that, therefore, evidence thereof was erroneously admitted; 5. That the court erred in excluding certain testimony offered by the defendant.

It appears from the record that on the twenty-ninth day of April, 1909, one H. C. Keyes, a citizen of the city of Sacramento, was the owner of an automobile, which bore the number 320, and on the evening of said day, at about the hour of 9 o'clock, he drove the machine into a garage in said city