be drawn from the language used. It contains no language prohibiting the legislature from passing such acts.. "There can be no implication of the non-existence of such power, but whoever would claim that the power does not exist in any particular case, must point out the provision of the constitution which has taken it away or forbidden its exercise." (Sheehan v. Scott, 145 Cal. 686.) [1] Our conclusion is that the act of 1911 is not in conflict with any constitutional provision and is a valid exercise of legislative power. The demurrer to the petition for a writ of mandate is overruled. Let a writ of mandate issue directed to the board of trustees of the South San Joaquin Irrigation District commanding it to call the election asked for in the recall petition on file with it. We concur: CHIPMAN, P. J. ELLISON, J. pro tem. Crim. No. 497. Second Appellate District. July 27, 1916. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JACK LETOILE, Defendant and Appellant. [1] CRIMINAL LAW-INCEST-EVIDENCE-COMMISSION OF CRIME WITH PERSON OTHER THAN COMPLAINING WITNESS-UNCORROBORATED TESTIMONY OF ACCOMPLICE.-In a prosecution for the crime of incest evidence of the commission of the same crime with a person other than the one named in the information is not admissible, and where the complaining witness is shown to be an accomplice, and there is no other evidence corroborative of her testimony, a judgment of conviction cannot be sustained. [2] ID. TRIAL EXCLUSION OF PUBLIC-CONSTITUTIONAL LAW.An order made at the beginning of the trial of a criminal case and thereafter enforced requiring all persons other than those directly connected with the trial to withdraw from the courtroom, and the conducting of the trial of the case "behind closed doors", is unwarranted, as under article I of section 13 of the constitution, a defendant is entitled to a public trial. Appeal from the Superior Court of Los Angeles County-Gavin W. Craig, Judge. For Appellant-Guy Eddie. For Respondent-U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General. Defendant was convicted and sentenced to imprisonment for the crime of incest committed with his eldest daughter. His appeal is from the judgment and from an order denying his motion for a new trial. Testimony directly supporting the charge was given by the prosecuting witness, the daughter of the defendant. It was claimed by the defendant that according to her own testimony she had consented to the acts constituting the ground of complaint, and that she being therefore an accomplice, the conviction cannot be sustained without corroborative evidence tending to connect the defendant with the commission of the offense. The only corroborative evidence found in the record is con tained in the testimony of Mary Letoile, a sister of the prosecuting witness, Lucy Letoile, which testimony was admitted over objections thereto. This witness was called by the prosecution as a witness in rebuttal, and was questioned about trouble between herself and her father at about the time of his arrest. This ques tion was asked by the district attorney: "About that time and for some time previous thereto, had you had trouble with him with regard to his acts of sexual intimacy with you?" After an objection had been made and overruled, she answered that question in the affirmative. Evidence was thus placed before the jury not only by the prosecuting witness that the defendant had committed the crime of incest with her, but also by the daughter Mary that defendant had committed a like crime with her. Unless this was corroboration of Lucy's testimony respecting the offense charged in this action, there is no corroboration in the record. The jury may have believed Lucy's testimony as to the defendant's acts, but that those acts were done with her consent and that she was an accomplice therein; and in that event their verdict was necessarily based also upon the testimony of Mary which tended to show the defendant's disposition to commit that kind of a crime by showing that he had committed such a crime with a person other than the one named in the information. [1] The decisions in this state are uniform to the effect that such evidence in prosecutions for crimes of this class is not admissible. (People v. Bowen, 49 Cal. 654; People v. Stewart, 85 Cal. 174; People v. Elliott, 119 Cal. 593.) It is suggested, however, that the testimony was properly admitted in rebuttal in that the defendant had opened the door therefor by testifying that he had had trouble with his daughters Lucy and Mary because of their staying out late at night against his wishes, and that that was the only trouble he ever had with his daughters. Examination of the record does not support this view of the defendant's testimony. In order to show animus of the prosecuting witness against him, the defendant testified that he had had trouble with Lucy, and incidentally further testified that he had trouble with both Lucy and Mary, on the subject of their staying out late at night. It was only upon cross-examination and under adverse rulings upon his objections thereto that the defendant stated that he had not had any other trouble with his daughters. As to the daughter Mary, this was immaterial to the case. She had not been a witness and therefore had given no testimony for or against the defendant. In People v. Turco, 156 Pac. Rep. 1001, we had occasion to examine the authorities bearing upon the limits of the right of cross-examination of a defendant in a criminal case. and the limits of the right to introduce rebuttal testimony based upon facts elicited by such crossexamination. The principle was recognized that the people have the right on the cross-examination of a defendant to draw out anything which will tend to contradict or modify his testimony given on his direct examination, and that such testimony of the defendant may be met by testimony in rebuttal. In the present case, however, we do not think that the circumstances shown by the record are such as to warrant the application of the rule stated. The testimony of the witness Mary Letoile, to which we have referred, should have been excluded. [2] At the beginning of the trial in this case the court made an order, which was thereafter enforced, requiring all persons other that those directly connected with the trial to withdraw from the courtroom, and tried the case "behind closed doors". We do not doubt the right of the court to regulate the admission of the public to the courtroom in any appropriate manner in order to prevent overcrowding or disorder, but the right does not exist to wholly exclude the public. Under article I, section 13, of the constitution of this state, the party accused in a criminal prosecution is given the right to a public trial. Referring to a similar order made in People v. Hartman, 103 Cal. 242, the supreme court said: "This was a novel procedure, and has no justification in the law of modern times. We know of no case decided in this country supporting the course of procedure here pursued. It is in direct violation of that provision of the constitution which says that a party accused of crime has a right to a public trial." Νο objection was made by or on behalf of the defendant to this course of procedure by the court, and the point is made for the first time on this appeal. In view of our conclusions upon the first question discussed herein, it seems unnecessary to base our decision upon the proposition that the defendant was deprived of his right to a public trial. See also: People v. Swafford, 65 Cal. 223, and the comment thereon in 103 Cal. 245. The judgment and order are reversed. We concur: JAMES, J. CONREY. P. J. Crim. No. 490. Second Appellate District. July 27, 1916. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. TONY VISCONTI, Defendant and Appellant. [1] CRIMINAL LAW-MURDER-DEFENSE OF ALIBI-EVIDENCECHARACTER OF PROOF-REFUSAL OF SPECIFIC INSTRUCTION-PREJUDICIAL ERROR.-In a prosecution for the crime of murder where the defendant relies upon the defense of alibi, it is prejudicial error to refuse to instruct the jury at his request that in making the proof of such defense he is not obliged to establish it by a preponderance of evidence or beyond a reasonable doubt, but that it is sufficient to entitle him to a verdict of not guilty if the proof raised in the minds of the jury a reasonable doubt as to his presence at the place where the crime is alleged to have been committed and at the time referred to in the information; and such error is not cured by the giving of the general instruction that before conviction can be had it is incumbent upon the prosecution to prove beyond a reasonable doubt all of the matters alleged in the information. Appeal from the Superior Court of Riverside County-Charles Monroe, Judge. For Appellant-Ford & Nelson. For Respondent-U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General. Defendant was charged with the crime of assault with a deadly weapon with intent to murder. He was found guilty as charged, and has taken an appeal from a judgment of imprisonment, as well as from an order denying his motion for a new trial. The complaining witness gave testimony identifying the defendant as being the man who entered her house in the night time and who struck her with a gun after she had attempted to shoot him. It appeared that the man with whom the encounter was had entered the house of the prosecutrix with burglarious intent. The prosecuting witness positively identified defendant as being the perpetrator of the crime; she testified that there was some light in the house-perhaps a lantern-but she was not sure about that. The defendant denied that he was the person who had assaulted the prosecutrix, and introduced his wife and another witness who gave testimony in corroboration of his claim that he was not at the house of the prosecutrix on the night charged, but was at another place some distance away. In view of the testimony offered for the purpose of establishing an alibi, the defendant asked the court to give an instruction by which the jury was to be informed that in making the proof of an alibi the defendant was not obliged to establish that defense by a preponderance of evidence or beyond a reasonable doubt, but that it was sufficient to entitle him to a verdict of not guilty if the proof raised in the minds of the jury a reasonable doubt as to the presence of the defendant at the place where the crime was alleged to have been committed and at the time referred to in the information. The court refused to give this instruction, or any instruction upon the matter of the defense of an alibi. It seems to be conceded, as it must, that the instruction as proposed was pertinent and proper; but the contention is made that inasmuch as the trial judge did instruct the jury that they must believe beyond a reasonable doubt that defendant committed the crime, no prejudice would arise by reason of the failure to instruct directly upon the matter of the alibi proof. The instruction of the court which was given was general and stated in substance that before conviction could be had it was incumbent upon the prosecution to prove beyond a reasonable doubt all of the matters alleged in the information. [1] We think that defendant was entitled to have some particular and specific instruction given touching the matter of his defense of an alibi. It is said in our decisions that the matter of alibi proof is not strictly "a defense". However, in the American & English Encyclopedia of Law, as cited in the case referred to below, this expression is made: "The true doctrine seems to be that where the state has established a prima facie case, and the defendant relies upon the defense of alibi, the burden is upon him to prove it, not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is con sidered, create and leave in the mind of the jury a reasonable doubt of the guilt of the accused." (People v. Winters, 125 Cal. 325.) It may well have been that the testimony introduced by the prosecution did make out to the minds of the jury and beyond a reasonable doubt prima facie the guilt of the accused. Yet if upon the evidence offered by him tending to show that at the time in question he was not at the place, nor where he could have committed the crime, a reasonable doubt was created in the minds of the jury, such doubt of course would avail the defendant and entitle him to an acquittal. The quantity and variety of evidence and the quality of proof which would be sufficient to raise such doubt where an alibi was sought to be proven, are proper and pertinent subjects for an instruction to the jury and we think were within the right of defendant to insist upon. There are no decisions in this state directly upon the point presented, but in a similar state of the law the Oklahoma court has decided in agreement with appellant's contention. (Courtney v. State, 140 Pac. Rep. 163.) We are of opinion that the error in refusing to give the offered instruction was prejudicial, and that defendant is entitled to a new trial. The judgment and order are reversed. We concur: CONREY, P. J. JAMES, J. Civil No. 1935. Second Appellate District. February 15, 1916. CHARLES R. MCCARTY, Petitioner, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, and the HON. FRED H. TAFT, Judge thereof, Respondents. [1] JUSTICES' COURT APPEAL UNDERTAKING-NOTICE OF EXCEP TION TO SURETIES-FILING WITH JUSTICE ESSENTIAL.-A notice of exception to the sufficiency of sureties on an undertaking on appeal from a judgment of a justice's court, in order to be effectual, must be filed with the justice. Application for writ of prohibition. For Petitioner-Niles Chapin Folsom. Application has been made on the part of the petitioner for a writ of prohibition to restrain the superior court from proceeding with the trial of a certain action pending on appeal from the justice's court of Los Angeles township to said superior court, and in which this petitioner is the plaintiff. The action was commenced in the justice's court on the 23rd day of February, 1915, and judgment was thereafter rendered against one Leuschner, the defendant. The defendant gave notice of appeal and undertaking on appeal in the amount required by law. As ground for the writ here sought it is alleged that the sureties on the undertaking on appeal failed to justify after exception had been taken to their sufficiency, and that therefore, under the provisions of section 978-a, Code of Civil Procedure, the appeal should have been dismissed by the superior court. A motion was made in the superior |