Where the homicide occurred when deceased was in the act of disturbing the possession and property of the defendant in a mining claim, it is proper to allow the defendant to show ownership as part of the res gesta indicating the state of defendant's mind at the time.-People vs. Castello, 15 Cal., p. 350. MALICE is established sometimes by proof that defendant went armed, etc., and similar acts are permitted to be the subject of inquiry. As against this, defendant may in explanation show why he was armed, etc., or the like.-People vs. Williams, 17 Cal., p. 142. Threats as evidence of malice.-People vs. Scoggins, 37 Cal., p. 676. It is proper to show that threats are communicated to defendant which were made by deceased.-People vs. Lombard, 17 Cal., p. 316. Exclusion of declaration when properly made, and no advantage of the surprise is attempted to be taken, is not error.-People vs. Bealoba, 17 Cal., p. 389. When, what, and under what circumstances declarations are inadmissible.-People vs. Simonds, 19 Cal., p. 275. It would be no defense to show that a difficulty had occurred sufficient time prior to the homicide to allow passion to cool; hence, proof of one six hours prior thereto was held to be inadmissible in the case of People vs. Smith, 26 Cal., p. 665. INTENT is essential, and may be proved directly or by any circumstances tending to establish it.-People vs. Pool, 27 Cal., p. 52. Threats against one other than deceased may not be shown to have been made immediately prior to the homicide, nor will quarrels be permitted to be proved.-People vs. Henderson, 28 Cal., p. 465; People vs. Scoggins, 37 Cal., p. 677. Shooting one person with the intent to kill another, the shooting is with murderous intent.-People vs. Torres, 38 Cal., p. 141. IN LARCENY.-Identity of the goods and owner as laid in the indictment, if not proved, fatal; but in this case it was sufficiently proved.-People vs. Teresa Keane, April Term, 1872 (No. 3194). Intent may be explained.-People vs. Stone, 16 Cal., p. 369. Identity of property and reasonable doubt of.-People vs. Eckert, 19 Cal., p. 603. Unexplained possession of stolen goods not of itself sufficient to convict.-People vs. Ah Ki, 20 Cal., p. 177. Jury to judge of credibility of witness.-People vs. Eckert, supra. In charge, the Court must not assume a fact to have been proved.— People vs. Carabin, 14 Cal., p. 438. Legislature may declare grand larceny the larceny of specific property, without reference to value.-People vs. Townsley, 39 Cal., p. 405. RECEIVING STOLEN GOODS, ETC.-It is not necessary to allege or prove who stole the goods to convict of the crime designated in Sec. 496, ante.-People vs. Avila, January Term, 1872 (No. 3075), supported in Commonwealth vs. State, 11 Gray, p. 60; People vs. Caswell, 21 Wend., p. 86; State vs. Murphy, 9 Ala., p. 845; Rex vs. Bush, Rus. & Ry. Cr. Cas., p. 372; Rex vs. Jarvis, 6 Car. & P., p. 156; 2 Bish. Crim. Prac., Sec. 927. Possession of stolen goods is a circumstance like others to show guilt.-People vs. Kelly, 28 Cal., p. 423. But not positive proof, to be rebutted by showing they came into defendant's hands.-People vs. Antonio, 27 Cal., p. 404; People vs. Robles, 34 Cal., p. 591. Circumstance tending to show guilt, that defendant had said he would show where the money was.— People vs. Hoy Yen, 34 Cal., p. 176. Confessions by promises to use influence to get defendant acquitted.People vs. Smith, 15 Cal., p. 408. Being under twentyone years of age is not such proof of another's control as to avail defendant in trial for larceny.-People vs. Richmond, 29 Cal., p. 414. Difference between larceny and other offenses, such as embezzlement.-See Secs. 484-503, ante, and notes; People vs. Belden, 37 Cal., p. 51; People vs. Bogart, 36 Cal., p. 247. Receiver must be tried and convicted in county where he acted, and not where the larceny was committed.-People vs. Stakem, 40 Cal., p. 599. Venue in larceny may be laid in any county to which the property is conveyed.-People vs. Mellon, 40 Cal., p. 648. IN RAPE. Lewdness of prosecutrix with others admissible for defense when she is the only witness.People vs. Benson, 6 Cal., p. 221. Because acts not amounting to rape are shown at one time, does not prohibit the proving the offense at another.-People vs. Manahan, 32 Cal., p. 68. IN ROBBERY.-See Secs. 211, 212, 213, ante, and notes; People vs. Hoy Yen, 34 Cal., p. 176; People vs. McCrea, 32 Cal., p. 98; People vs. Jones, id., p. 80. IN PERJURY.-People vs. Quin, 18 Cal., p. 122; People vs. Webb, 38 Cal., p. 475, history of case. IN FORGERY AND COUNTERFEITING.-Proof of corporation de facto. Time, and guilty knowledge.— People vs. Frank, 28 Cal., p. 507. Having counterfeit coin.-People vs. Farrell, 30 Cal., p. 316. Having tools, etc., for counterfeiting.-People vs. White, 34 Cal., p. 183. IN ASSAULT-With intent to commit murder.-See Evidence on trial for treason. Evidence on trial for People vs. English, 30 Cal., p. 214; People vs. Hobson, 17 Cal., p. 424. IN BURGLARY.-See People vs. Jenkins, 16 Cal., p. 431; People vs. Winters, 29 Cal., p. 658; and Sec. 459, ante, et seq., and notes. IN ARSON.-See Secs. 447-455, ante, and notes; People vs. Hughes, 29 Cal., p. 257; People vs. Scott, 32 Cal., p. 200. IN INCEST.-See Sec. 285 and note, ante, and Sec. 785, post; People vs. Murray, 14 Cal., p. 159. the testi 1103. (§§ 371, 372.) Upon a trial for treason, the defendant cannot be convicted unless upon mony of two witnesses to the same overt act, or upon confession in open Court; nor can evidence be admitted of an overt act not expressly charged in the indictment, nor can the defendant be convicted unless one or more overt acts be expressly alleged therein. Note.-Art. I, Sec. 2, State. Const., and note, Appendix Pol. Code Cal. 1104. (§ 373.) Upon a trial for conspiracy, in a conspiracy. case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment, nor unless one of the acts alleged is proved; but other overt acts not alleged in the indictment may be given in evidence. When burden of proof shifts in trials for murder. Evidenco on a trial, 1105. 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. NOTE.-Stats. 1850, p. 229, Sec. 37. 1106. Upon a trial for bigamy, it is not necessary for bigamy. to prove either of the marriages by the register, certificate, or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases; and when the second marriage took place out of this State, proof of that fact, accompanied with proof of cohabitation thereafter in this State, is sufficient to sustain the charge. NOTE.-Stats. 1861, p. 415, Sec. 1; see note to Sec. 281, ante. Evidence! for forging upon a trial bank bills, etc. 1107. Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing, or attempting to pass, or having in possession with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of such bank or company by the charter or act of incorporation, but it may be proved by general reputation; and persons of skill are competent witnesses to Experts. prove that such bill or note is forged or counterfeited. NOTE.-Stats. 1850, p. 229, Sec. 79; see Sec. 470, and note, ante. upon trial abortion seduction. 1108. Upon a trial for procuring or attempting to Evidence procure an abortion, or aiding or assisting therein, or for for inveigling, enticing, or taking away an unmarried and female of previous chaste character, under the age of twenty-five years, for the purpose of prostitution, or aiding or assisting therein, the defendant cannot be convicted upon the testimony of the woman upon or with whom the offense was committed, unless she is corroborated by other evidence. NOTE.-See People vs. Joselyn, 39 Cal., p. 393; and on a trial for selling, tickets. etc., lottery 1109. Upon a trial for the violation of any of the Evidence provisions of Chapter IX, Title IX, Part I of this Code, it is not necessary to prove the existence of any lottery in which any lottery ticket purports to have been issued, or to prove the actual signing of any such ticket or share, or pretended ticket or share, of any pretended lottery, nor that any lottery ticket, share, or interest was signed or issued by the authority of any manager, or of any person assuming to have authority as manager; but in all cases proof of the sale, furnishing, bartering, or procuring of any ticket, share, or interest therein, or of any instrument purporting to be a ticket, or part or share of any such ticket, is evidence that such share or interest was signed and issued according to the purport thereof. NOTE.-Stats. 1861, p. 229, Sec. 12. 1110. (§ 376.) Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property, or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language, unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof be in writing, subscribed by or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two witnesses, or that of one witness, and corroborating circumstances; but this section shall not apply to a prosecution for falsely representing or personating another, and, in such assumed character, marrying, or receiying any money or property. NOTE.-Stats. 1862, p. 53, Sec. 1. 1111. ($375.) A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof. NOTE.-Founded upon Sec. 375 of the Criminal Practice Act of 1851, which read as follows: “Section 375. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated |