hibiting reversal on account of errors in pro- mind, regardless of the number of witnesses cedure or misdirection of the jury unless the from whom it proceeds." court is of the opinion that the error prejudiced the defendant, where the evidence was such that the jury might reasonably have found for the defendant under a proper instruction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. 1186.]

In instructing the jury as to the meaning of the term "proof beyond a reasonable doubt," the trial judge, in line with this definition, expressly told the jury that “moral certainty only is required or that degree of proof which produces conviction in an unprejudiced mind"; and again that "the evidence must establish the truth of the fact to a reasonable and moral certainty; a certain"Preponderance of the evidence means that ty that convinces and directs the understanddegree of evidence which proves to a moral certainty, or, in other words, that degree of proofing, and satisfies the reason and judgment of that produces conviction in an unprejudiced those who are bound to act conscientiously

jury of the existence of the fact, and yet it might be of greater weight than other evidence fact," and that "in such case the fact could not introduced which would tend to disprove the be said to be proven either by a preponderance of the evidence or at all."

upon it." Clearly the jury was thus given | substantially the same definition of both the terms "preponderance of evidence" and the term "proof beyond a reasonable doubt," thus making it essential for the defendant to establish his defense of insanity by evidence The same idea was expressed in Anderson showing the same to the satisfaction of the v. Chicago Brass Co., supra. The party on jurors beyond a reasonable doubt. That such whom rests the burden to prove an alleged is the effect of the instruction given is shown fact must produce evidence sufficient in quanby what is said in People v. Wreden, 59 Cal. tity and character to warrant a jury in find393, and People v. Wells, 145 Cal. 142, 78 ing the fact to exist, in the absence of opposPac. 470, where it is held that an instruction ing evidence. The question what that evideclaring that insanity "must be clearly es-dence must amount to in order to legally suptablished by satisfactory proof" is the full equivalent of one making it incumbent on a defendant to establish insanity beyond a reasonable doubt.

port a conclusion by the jury has nothing at all to do with the question what is meant by the term "preponderance of the evidence." The party on whom rests such burden hav[3] No such definition of the term "pre- ing produced sufficient evidence to support a ponderance of the evidence" as that given by conclusion in his favor, opposing evidence the trial judge is sanctioned by the author- may also have been introduced, and then only ities. The term simply means what it says, does the question of preponderance of eviviz.: That the evidence on one side out-dence arise. The situation may then be that, weighs, preponderates over, is more than, the in view of the opposing evidence, the jury is evidence on the other side, not necessarily in doubt, and not at all satisfied or convincin number of witnesses or quantity, but in its effect on those to whom it is adressed. As good a definition as we have found is that given in Hoffman v. Loud, 111 Mich. 156, 69 N. W. 231, where it is said:

"In civil cases a preponderance of evidence is all that is required, and by a 'preponderance of evidence' is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests."

In Parker v. Hull, 71 Wis. 368, 37 N. W. 351, 5 Am. St. Rep. 224, it is said that to say that the evidence of one party must be more weighty, convincing, and satisfactory than the proof adduced by the other party is simply to state the rule of preponderance. In French v. Day, 89 Me. 441, 36 Atl. 909, it was held that an instruction requiring a "clear preponderance of evidence and convincing proof" was erroneous, and that a party was only required to prove his case "by a preponderance of the evidence," not by a "clear preponderance and by convincing proof." In Anderson v. Chicago Brass Co., 127 Wis. 273, 106 N. W. 1077, the term is held to be properly defined as the greater convincing power of evidence, and it is said that on a trial that side has furnished the preponderance of evidence which has produced evidence of greater convincing power in the minds of the jury than that produced by the other side.

[4] Of course, these definitions do not mean that the "burden of proof" resting on a party to prove a particular fact, as in this case the burden of proof resting on defendant to prove insanity and thus rebut the presumption of sanity which the law declares, is lifted by the mere fact that he has produced a preponderance of evidence, for, as was well said in Ergo v. Merced Falls, etc., Co., 161 Cal. 339, 119 Pac. 103, 41 L. R. A. (N. S.) 79: "The evidence tending to prove a fact might be so slight that it would fail to satisfy the

ed. In such a situation the decision must be based on the preponderance rule. If in the opinion of the jury the testimony preponderates in favor of the one on whom the burden of proof does not lie, or is equally balanced, the decision must be in his favor, and, if it preponderates ever so slightly in favor of the other party, he is entitled to a verdict. So that in civil cases a party may have established an essential fact by a preponderance of the evidence, although, in the light of all the evidence pro and con, the jury may not be satisfied to a moral certainty of the existence of the fact, and the whole evidence may not be such as to produce conviction in their minds. Under such circumstances, as said in Murphy v. Waterhouse, 113 Cal. 467, 45 Pac. 866, 54 Am. St. Rep. 365: "The weight of evidence or preponderance of probability is sufficient to establish a fact in a civil case.'

The question is not whether, in view of all the evidence, pro and con, the jury are satisfied to a moral certainty of the truth of the fact, or whether conviction as to that fact exists in their minds, but whether there is a preponderance of evidence in favor of the existence of the fact. We cannot avoid the conclusion that the instruction given on this matter most vital to defendant, the only instruction given on the subject, advised the jury that they could not find in his favor on the issue of insanity unless they were satisfied by the evidence, as a whole, "to a moral certainty" that he was insane at the time of the homicide, and "convinced" that such was the case, and we are satisfied that it could have been understood by the jury in no other

way.

[4] The error of the learned trial judge in this connection was doubtless induced by certain rather carelessly drawn provisions contained in our Code of Civil Procedure enacted in an attempt to satisfactorily de

that the preponderance of evidence was in favor of the theory of insanity. The evidence elicited on the trial was of such a nature that a jury might reasonably find therein basis for a conclusion that insanity on the part of the defendant, within the meaning of our law, had not been shown by a preponderance of evidence. But, according to the record, the case made for defendant on this issue was a substantial one, and the evidence tending to show insanity was such that a jury might reasonably have found therein sufficient basis for a conclusion that the preponderance of the evidence was in favor of the theory of insanity. For aught we know, the jury did so conclude in this case, finding against the defendant on that issue solely because of the erroneous instruction. It is not suggested by the learned Attorney General that, if the instruction be erroneous, the facts nevertheless are such as to warrant an affirmance in view of the rule declared by the provision of the state Constitution referred to.

In view of our conclusion on the point discussed, it is unnecessary to consider any other point made for reversal.

fine or declare the degree of proof essential opinion that the jury should have concluded to the establishment of a fact by evidence. See sections 1826 and 1835, Code Civ. Proc. Manifestly these provisions are not in accord with other provisions of law in all respects, even on the subject to which they relate. For instance, in section 1835 it is attempted to declare what is "satisfactory evidence," defining it as that evidence "which ordinarily produces moral certainty or conviction in an unprejudiced mind," providing that such evidence alone will justify a verdict, and declaring that all other evidence is "slight evidence." Yet by other sections of the same Code it is declared that a presumption is evidence, and that it is a deduction which the law expressly directs to be made from particular facts, and many presumptions, conclusive and prima facie, are stated, and it is expressly provided that as to a prima facie presumption the jury is bound to find according to the presumption unless it be controverted. Of course, also, it is bound to find in accord with a conclusive presumption. See sections 1957, 1959, 1961, 1962 and 1963. All this is true, although the presumption may not be such as to ordinarily produce moral certainty or conviction of the fact presumed in an unprejudiced mind. But whatever force may be attributed to these sections and whatever they may be held to mean, they have no application to the question here involved, viz.: What is meant by the term "preponderance of evidence"? They purport to do no more than to attempt to declare what character of evidence will sustain a verdict, and even in that, as we have seen, when considered in connection with other provisions of law, they are not entirely correct. The instruction given in Ergo v. Merced Falls, etc., Co., supra, relied on by the Attorney General, was one given at the request of the defendant, which was complaining of another incorrect instruction given at the request of the plaintiff, and it was simply held that the instruction so given at the request of the complaining defendant was of such a nature that the court would not be justified in holding the other instruction sufficiently injurious to justify a reversal. The instruction was not up

held as a correct statement of the law.

[5] We regard the error thus made as one most substantially affecting the rights of defendant. In effect, as we have said, the jury was instructed that he could not be acquitted on the ground of insanity unless he established the fact of insanity to their satisfaction beyond a reasonable doubt. We have carefully examined the evidence in order to determine whether, in view of the provisions of section 4% of article 6 of the Constitution, the judgment should be affirmed notwithstanding such error, and we are satisfied that the evidence was of such a nature that such a conclusion may not fairly be reached. In saying this we do not desire

[6] We find on an examination of the reporter's transcript of the proceedings at the trial that the same includes all arguments made by counsel to the court on questions of law arising during the trial. In the aggregate many pages of the transcript are devoted to this use. The incorporation of such arguments in a transcript for use on appeal serves no useful purpose. To the contrary, it not only impedes the examination of the record by an appellate court, but it also unnecessarily adds to the cost of the transcript to the county. The law does not require the insertion of any such matter in a transcript of the evidence to be used on appeal, and the trial judge should see that such a transcript is not unnecessarily lengthened by the incorporation of superfluous matter.

The judgment is reversed, and the cause remanded for a new trial.

We concur: SHAW, J.; SLOSS, J.; MELVIN, J.; LORIGAN, J.; HENSHAW, J.

HENSHAW, J. I concur in the foregoing opinion of the Chief Justice. Section 1835 of the Code of Civil Procedure, like section 1826 of the same Code, is dealing exclusively with evidence in criminal cases. The difficulty is entirely cleared if to the sentence in section 1835, "Such evidence alone will justify a verdict," there be added "of conviction." That these sections have applicability solely to criminal cases is made manifest, not only by the history and development of the law governing criminal trials, but from two additional facts, each equally convincing. The one fact is that, if those sections were made to apply to trials by jury in civil cases, it is

of 100 would necessarily result in perpetual mistrials. The evidence in civil cases upon either side is most rarely of so convincing a character as to produce "moral certainty or conviction," and, if it be only such evidence in a civil case as "will justify a verdict," then it must result that no verdict can be rendered. As pointed out by the Chief Justice, this distinction is itself noted by our law in section 2061 of the same Code. In subdivision 5 of that section criminal cases and civil cases are put in immediate juxtaposition, and courts are advised to instruct their juries that in civil cases their "decision must be made according to the preponderance of evidence," while "in criminal cases guilt must be established beyond a reasonable doubt." The second fact, equally conclusive, is shown by the history of these two sections, derived from the notes of the codifiers and commentators. Every word of those notes establishes that the codifiers are dealing with the sufficiency of evidence in criminal cases. Thus, in the note to section 1826 it is said: "The principal difference to be remarked between civil and criminal cases with reference to the modes of proof by direct or circumstantial evidence is, that in the former where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment than in the latter case which affects life and liberty."

While in the note to section 1835 it is said: "To acquit upon light, trivial, and fanciful suppositions and remote conjectures, is a virtual violation of the juror's oath, and an offense of great magnitude against the interests of society, directly tending to the disregard of the obligations of a judicial oath, the hindrance and disparagement of justice, and the encourage ment of malefactors. On the other hand, a juror ought not to condemn unless the evidence excludes from his mind all reasonable doubt as to the guilt of the accused, and, as has been well observed, unless he is so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interests."

In their note to section 1835 the codifiers cite Starkie on Evidence, and Starkie's discussion then may well be quoted. This is what that learned author says:

"Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty. From the highest degree it may decline, by an infinite number of gradations, until it produces in the mind nothing more than a mere preponderance of assent in favor of the particular fact.

"The distinction between full proof and mere preponderance of evidence is in its application very important. In all criminal cases whatsoever it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.

"But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale."

WILLIAMS, Superintendent of Banks, v.
CARVER et al. (No. L. A. 3652.)

(Supreme Court of California. Jan. 4, 1916.
Rehearing Denied Feb. 3, 1916.)

1. STATUTES 161-CONSTRUCTION.
Where there is an apparent conflict be-
they should be construed, if possible, to give
tween two statutes touching the same subject,
force and effect to each, as the law does not
favor repeals by implication.

[Ed. Note.-For other cases, see Statutes,
Cent. Dig. §§ 230-234; Dec. Dig. 161.]
2. BANKS AND BANKING 49-STOCKHOLD-

ER'S LIABILITY-ENFORCEMENT BY SUPER-
INTENDENT OF BANKS-STATUTE.

and regulate the business of banking," in sec-
St. 1909, p. 87, entitled "An act to define
tion 136 providing that the superintendent of
banks shall collect all debts due it, and may, if
necessary to pay its debts, enforce individual
ize the superintendent to enforce the constitu
liability of the stockholders, does not author-
tional liability of the stockholder to the credit
or fixed by Const. art. 12, § 3, declaring that
each stockholder of a corporation shall be lia
stock bears to the whole, since the constitution-
ble for such proportion of its liabilities as his
al right is personal to the creditor, enforceable
by him under Civ. Code, § 322, and, not being a
debt due the bank, is not enforceable by it or the
superintendent.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 71-812, 513, 534, 535; Dec. Dig. 49.]

3. BANKS AND BANKING 49-STOCKHOLDER'S LIABILITY-ENFORCEMENT BY SUPERINTENDENT OF BANKS-STATUTE.

St. 1909, p. 87, entitled "An act to define and regulate the business of banking," in section 136 providing that the superintendent of banks shall collect all debts due it, and may, if necessary to pay its debts, enforce the individual liability of the stockholders, only authorizes the superintendent to enforce against stockholders their liability due the bank, arising upon assessments or nonpayment of subscriptions to the corporate capital, constituting a common fund out of which to pay the cost of administration and corporate debts.

Banking, Cent. Dig. §§ 71-812, 513, 534, 535;
[Ed. Note.-For other cases, see Banks and
Dec. Dig. 49.]

4. STATUTES 107-TITLE
ALITY.

CONSTITUTION

every act shall embrace but one subject, which Under Const. art. 4, § 24, providing that shall be expressed in its title, St. 1909, p. 87, entitled "An act to define and regulate the business of banking," by section 136 providing that the superintendent of banks many enforce the ize him to enforce the liability of stockholders individual liability of stockholders, if it authorto creditors under Const. art. 12, § 3, is uncon

stitutional.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 121-134; Dec. Dig. 107.]

Kern County; J. D. Murphy, Judge.
In Bank. Appeal from Superior Court,

Action by W. R. Williams, as Superintendent of Banks, against L. J. Carver and others. From a judgment for defendants on their de murrers, plaintiff appeals. Judgment affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

H. W. Johnson, Jr., of San Francisco, and A. A. De Ligne, of Sacramento, for appellant. Corbet & Selby, of San Francisco (Frederick B. Lathrop, of counsel), for respondent L. J. Carver. E. L. Foster, of Bakersfield, for respondents R. McDonald and others. C. C. Cowgill, of Sonoma, for respondent Sarah L. Conner. Thomas Scott, of Bakersfield, for respondent R. E. White.

VICTOR E. SHAW, Judge pro tem. This is an equitable action, brought by plaintiff, as superintendent of banks, to recover from the stockholders of the Kern Valley Bank upon their constitutional liability to the creditors thereof. To the first amended complaint defendants interposed demurrers upon both general and special grounds. Their demurrers were sustained by the court, which refused to allow plaintiff to further amend. Judgment followed, from which plaintiff appeals.

It appears that on May 12, 1911, plaintiff, as superintendent of banks, declared the Kern Valley Bank insolvent, for which reason and the fact that it was then unsafe and inexpedient for it to continue its banking business, he took possession of all its property and business for the purposes of liquidation, as provided by law. It is alleged:

"That the conditions and affairs of said Kern Valley Bank are such that, in order to pay the debts thereof, it has become and is necessary to enforce the individual liability of the stockholders of said bank, as provided for by the Constitution and other laws of the state of California, and by virtue of the authority vested in him by said Bank Act of the state of California plaintiff brings this action on behalf of all the creditors of said Kern Valley Bank."

There is attached to the complaint a list of the names of some 1,500 persons, to all of whom it is alleged the bank, within three years prior to the filing of the complaint, became indebted in the aggregate sum of $832,502.54; that by offsets said sum of $832,502.54 has been reduced to $717,574.48, upon which there has been paid, by the superintendent of banks, in the liquidation of its affairs, dividends in the sum of 40 per cent. upon the principal of said indebtedness, and that there remains due to said creditors the sum of 60 per cent. of the whole principal of said indebtedness; that the value of all assets of the bank now in the hands of the plaintiff do not exceed $107,636.10, which

sum is

The prayer of the complaint is for judgment against each of said defendants in the several amounts specified as being the proportion of all the debts of the bank as the stock held by each bore to the entire subscribed capital stock of the bank, less the deduction which each defendant shall be entitled to by reason of the dividends theretofore paid, or which might thereafter be paid by plaintiff to said creditors.

[1] Plaintiff asserts right to maintain the suit under and by virtue of an act entitled "An act to define and regulate the business of banking" (Stats. 1909, p. 87), section 136 of which, in so far as material to the discussion, is as follows:

"The superintendent of banks shall collect all debts due and claims belonging to it, and upon the order of the superior court may sell or compound all bad or doubtful debts, and on like order may sell all real and personal property of such bank on such terms as the court shall direct; and may, if necessary to pay the debts of such bank, enforce individual liability of the stockholders by action to be brought within three years after the date of his taking possession of the affairs of such bank."

He insists that the "individual liability of the stockholders" therein mentioned, and which he is authorized to enforce, is the constitutional liability of the stockholder to the creditor fixed by section 3, art. 12, of the Constitution, which declares that:

"Each stockholder of a corporation shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation."

Section 322 of the Civil Code, after rèenacting this constitutional provision, provides, among other things, that:

"Any creditor of the corporation may institute

joint or several actions against any of its stock

holders, for the proportion of his claim payable by each."

The Bank Act makes no reference to this

section, nor to section 359, Code of Civil Procedure, which specifies the time when the maintenance of such action by the creditor shall be barred. The position of appellant with reference to these sections is that they "still provide such remedy in all cases except where a bank has been taken over by the superintendent of banks for the purpose of liquidation," in which case the constitutional right of the creditor to pursue the stockholder is, ipso facto, terminated, and the enforcement of the payment of his debt committed to the will of the superintendent of banks, who, if it be "necessary to pay the debts of such bank," may, notwithstanding the claim The names of the stockholders, with the is barred under section 359, Code of Civil number of shares owned by each during the Procedure, bring an equitable action to retime when said indebtedness is alleged to cover the specific sum due from each stockhave been incurred by the bank, together holder to each creditor, and, when collected, with the proportionate liability of each in the pay to each creditor the sum so collected in aggregate to all of the depositors based upon his behalf. The law does not favor repeals the number of shares so owned by each by implication, and where there is an appar

"probably insufficient to pay the expenses necessary for the completion of the liquidation of the affairs of said bank and an additional dividend of not more than 15 per cent. of the principal of said original indebtedness."