and thereupon judgment was given against him on the plea. He appeals from the judgment, from the order denying his motion in arrest of judgment, and also from the order refusing him a new trial. It is clear that there is no authority for the appeal from the judgment, nor for that from the order denying the motion in arrest of judgment. Sections 1237 and 1259 of the penal code read: "Sec. 1237. An appeal may be taken by the defendant: 1. From a final judgment of conviction; 2. From an order denying a motion for a new trial; 3. From an order made after judgment, affecting the substantial rights of the party." "Sec. 1259. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment." Section 1237 does not give an appeal from an order denying a motion in arrest of judgment. The appeal from the order is therefore without authority, and must be dismissed. So, too, with respect to the appeal from the judgment upon the plea of former conviction. It is obvious that such a judgment is not a "final judgment of conviction." It only determines that the defendant has not been previously convicted of the offense of which he now stands charged, leaving the question of his conviction or acquittal open, to be determined after a trial With respect to the appeal from the order denying defendant a new trial, the statute does not contemplate a motion for a new trial until all of the issues of fact have been tried. And inasmuch as the law did not authorize the motion for a new trial made by the appellant in the court below, it results that there can be no appeal from the order denying such a motion. Appeals dismissed. No. 10,927. PEOPLE v. FORSYTHE. In Bank. Filed March 13, 1884. WHEN THE EVIDENCE IS CONFLICTING, an order denying a motion for a new trial will not be disturbed on the ground that the same is insufficient to justify the verdict. A JUDGMENT CONVICTING THE DEFENDANT OF MANSLAUGHTER held supported by the evidence. THE REFUSAL OF THE COURT TO PERMIT THE COUNSEL OF A PRISONER CHARGED WITH MURDER, on cross-examination of a witness for the prosecution, to question him in regard to the desperate character of the deceased, and as to what the witness had told the defendant of threats made by deceased against the defendant, is not error, when none of such matters were gone into on the direct examination. AN INSTRUCTION IN REGARD TO THE FLIGHT OF A PERSON ACCUSED OF CRIME is justified, when it appears that the defendant was absent from his home soon after the commission of the crime, and that some three weeks afterwards he was arrested in another county. PERMITTING COUNSEL IN HIS ARGUMENT TO READ TO THE JURY A PORTION OF AN OPINION OF THE SUPREME COURT is not error sufficient to warrant a reversal. Such practice, however, is not to be commended. APPEAL from a judgment of the superior court for Humboldt county, entered upon a verdict convicting the defendant of manslaughter, and from an order denying him a new trial. The opinion states the facts. Buck & McQuaid, for the appellant. Attorney general, for the respondent. SHARPSTEIN, J. Although the defendant pleaded not guilty to the charge of murder, he did not attempt on the trial to controvert the fact that he actually killed the deceased. He endeavored then to prove that the homicide was committed in self-defense, and justifiable. He now claims that this was so clearly proven as to justify this court in reversing the judgment on the ground that the verdict of the jury, which was, guilty of manslaughter, was not justified by the evidence. One witness testified to having seen the defendant approach deceased from behind and strike him on the head with a club. Another who was near the scene of the homicide testified that he heard a noise which sounded to him like a blow; that he looked in the direction from which the noise came, and saw the deceased falling. Two other witnesses testified that they too heard the blow, and saw the deceased fall; and that they heard the defendant say that he intended to kill the deceased. These witnesses testify to having been within a few feet of the scene of the homicide when it was committed. Another wintess-a physician-testified that he was requested by defondant to examine the deceased and ascertain how badly he was hurt; and that he, witness, at that time asked defendant why he had done it, and that the latter replied, "Damn him! he sassed me." The fact that the death of deceased was caused by a blow struck by defendant with a club is not controverted. And we have referred to the testimony of these witnesses for the purpose of showing that none of them saw deceased do or say anything to defendant at the time of or immediately preceding the striking of the mortal blow which would justify or excuse it. The evidence of these witnesses tended to prove that deceased was quietly walking away from the barn where defendant was employed when the latter approached him from behind and dealt the mortal blow. We can not say that the jury might not have fairly inferred from the evidence of the prosecution that deceased was wholly unconscious of the fact of defendant's being on the premises while he, deceased, was there. There is no evidence that he saw defendant or inquired for him. He sought the proprietor of the barn, and was killed while in the act of leaving the premises, in a perfectly peaceable manner, according to the testimony of eye-witnesses. "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable:" Pen. C., 1105. We are unable to find any "proof on the part of the prosecution" which "tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." On the contrary, it tends to show the exact reverse. If the defendant introduced evidence which tended to prove that the homicide was justifiable or excusable, it simply raised a conflict for the jury to determine, subject only to the power of the court below to grant a new trial. Under such circumstances, we can not, on the ground of insufficiency of the evidence to justify the verdict, disturb the order denying the motion for a new trial. The exception to the ruling of the court in sustaining the objection of the district attorney to defendant's counsel questioning a witness for the prosecution on cross-examination in regard to the desperate character of the deceased, and as to what the witness had told defendant of threats made by deceased against defendant some time before the homicide. must be overruled. None of these matters were gone into on the direct examination of the witness, and could be introduced by the defendant only for the purpose of proving circumstances of mitigation, or to justify or excuse the homicide. As to what occurred at the time and place of the homicide, the defendant's counsel appears to have had all the latitude he desired in his cross-examination of the witness. There was evidence tending to prove that the defendant was absent from home soon after the homicide, and that some three weeks afterwards he was arrested in another county. This, we think, justified the court in giving the instruction it gave in regard to the flight of a person accused of crime. As we construe the instruction, it neither assumes the guilt nor flight of the defendant: People v. McDowell, 1 West Coast Rep. 478. The district attorney was permitted, against the objection of defendant's attorneys, to read, while summing up to the jury, some portions of an opinion filed by this court in a late case. No case is cited, and we know of none, in which it has ever been held that doing so was error. Still we are not disposed to commend the practice. Judgment and order affirmed. MORRISON, C. J., and Ross, MCKINSTRY, MYRICK, MCKEE, and THORNTON, JJ., concurred. No. 9,088. NISSEN V. BENDIXSEN. Department Two. Filed March 14, 1884. WHEN THE TRANSCRIPT DOES NOT SHOW THAT THE NOTICE OF APPEAL WAS SERVED upon the respondent's attorney, the appeal will not be dismissed when it appears from the certificate of the clerk of the court below that such service was made. MOTION to dismiss an appeal from the superior court for Humboldt county. The opinion states the facts. J. J. De Haven, for the motion. S. M. Buck, contra. By the COURT. The original transcript did not show that the notice of appeal was served on the plaintiff's attorney of record, and a motion to dismiss on that ground was made by said attorney. When the motion was called up the defendant's attorney suggested diminution of record, and asked and obtained leave to file a certificate of the clerk of the court below, showing that proof of service of said notice on plaintiff's said attorney of record is on file in the office of said clerk. Motion to dismiss denied. No. 10,914. PEOPLE V. GRIDER. Department Two. Filed March 14, 1884. IN A PROSECUTION FOR LARCENY, WHEN THE TAKING OF THE PROPERTY IS ADMITTED, the intent with which the same was taken is a question for the jury. APPEAL from a judgment of the superior court for Sonoma county, entered upon a verdict convicting the defendant of grand larceny, and from an order denying him a new trial. The opinion states the facts. Henley & Oates, for the appellant. Attorney general, for the respondent. MYRICK, J. The information accused the defendant and one Donovan of the crime of grand larceny. That the defendant Grider took the money from the pocket of Carmody, when the latter was intoxicated, is admitted. The proposition of Grider was that certain persons engaged in a 66 game" were endeavoring to obtain the money by means of the game, and that he, Grider, took it as a friend of Carmody to protect it for him. On the other hand, the theory of the prosecution seems to have been that Grider took the money feloniously, with intent to steal it, making use of the other idea as a pretext, or as an afterthought. In that view, the rulings of the court and the instructions given were correct. No error appearing, the judgment and order are affirmed. RE-OPENING OF CASE.-After the testimony in a criminal case has closed, and the opening argument for the prosecution has begun, it is a matter of discretion with the court whether it shall allow the defendant to re-open his case, for the puropose of introducing evidence on his plea of once in jeopardy, as to which no evidence had been given. IN A PROSECUTION FOR LARCENY, EVIDENCE of a fact which tends to connect the defendant with the taking of the property named in the information is competent. APPEAL from a judgment of the superior court for Fresno county, entered upon a verdict convicting the defendant of grand larceny. The opinion states the facts. Rhodes and Merriam, for the appellant. Attorney general, for the respondent. MYRICK, J. The information accused the defendant of the crime of grand larceny; and on being arraigned, the defendant pleaded not guilty, and once in jeopardy. At the trial, evidence was given for the prosecution and for the defense, but none of the evidence related to the plea of once in jeopardy. After the district attorney had begun his opening argument to the jury, and was about to close, defendant's attorneys asked that they be allowed to reopen their case for the purpose of introducing testimony on the plea of once in jeopardy, and the request was denied. No error appears; it was a matter of discretion. The evidence regarding the cigarettes was competent, for the reason that it tended to connect the defendant with the taking of the property named in the information. For this reason, doubtless, the court admitted it, notwithstanding the obscure manner in which the district attorney stated its object. There is no error in the record. Judgment affirmed. A TREATISE ON THE BOOK REVIEWS. LAW OF PLEDGES, INCLUDING COLLATERAL SECURITIES. By In this volume the author continues the examination of that most important branch of the general law which relates to securities. His three former works, on Mortgages of Real Property, on Mortgages of Personal Property, and on Railroad and Other Corporate Securities, are well known to the profession in all parts of the country, and have placed him among the foremost of living legal text-writers. Pledges have heretofore been treated as simply a species of bailment, and in connection with a more general discussion of the doctrines concerning all bailments; and the rules as laid down in the professed treatises upon the law of bailments have been almost exclusively confined to pledges of tangible, material chattels. Even Judge Story's standard work, learned as it is, devotes only "three lines to the matter of pledges of corporate stocks." Of late years, however, from the immense expansion of the credit system in the transaction of the world's business, and from the universal practice of using bills of lading, warehouse receipts, stock certificates, and other written muniments of title, as the representatives of personal property or of funds, the law concerning pledges has developed many new features, and has called for the decision of many new questions, and the settlement of many new rules. As the author correctly says: "During the last half-century the law of pledges has assumed a new importance from its adaptation to such transactions as loans on negotiable paper, upon shares and bonds of corporations, upon bills of lading of railroad companies and other common carriers, and upon warehouse receipts." In short, the law concerning pledges has become, to a great extent, the law concerning "collateral securities." Mr. Jones treats the subject from this point of view, and presents it in this broad and comprehensive manner. After fully describing the nature of a pledge, with its essential features and incidents, and considering the various parties who may be pledgors and pledgees, including married women, partners, and corporations, he devotes several chapters to an elaborate discussion of pledges of negotiable instruments, of non-negotiable things in action, such as mortgages, insurance policies, judgments, savings-bank books, land certificates, and the like, of corporate stocks, of bills of lading, of warehouse receipts, and of pledges by factors—which latter subject involves an examination of the legislation known as the |