of the Political Code, and read: "The board has power to determine all complaints in regard to the assessed value of property, and may, except as prohibited in this title, correct any valuation by adding or deducting such sum as may be necessary to make it conform to the actual cash value." The section was amended in 1880 as it now reads, and has ever since stood in its present form. It is argued that the amendment of 1880 dropped from the section the words, "all complaints in regard to the assessed value of property," and that the board may now, after giving notice, raise an assessment without any formal complaint being filed; hence if no complaint is necessary no evidence is required. We do not think it was the intention to dispense with evidence.

In San Francisco v. Flood, 64 Cal. 508, decided in January, 1884, it is said: "The action of the board in dealing with the valuation of the property listed in the roll is based upon evidence which may be adduced before the board. (Pol. Code, secs. 3673, 3677.) As to increase of amount of valuation or reduction, the board can only act on evidence. We cannot see how it could act otherwise."

In Hagenmeyer v. Board etc. of Mendocino Co., 82 Cal. 218, it is said: "The record does not show by affirmative proof that the board did not act upon evidence before it. Therefore its order in the premises is conclusive that it did act upon such evidence as was necessary.

In Farmers' etc. Bank v. Board of Equalization, 97 Cal. 325, it is said: "The board had no power to order a new assessment to be made without evidence."

Under the above decisions it has become the settled rule in this state that the board can only act upon evidence in raising or lowering an assessment. We are aware that a different rule has been announced in some states, but generally the rule in such cases has been based upon the peculiar wording of the statute under which the decision has been rendered. But when such is not the case, we think the rule as herein announced the better and safer one. It is claimed that the record shows that there was evidence taken before the board. Counsel in his brief under this claim says: "Mr. Ryan was called upon to testify, but refused to make any statement

why the assessment should not be increased. Mr. Martin, in behalf of the defendant, testified simply that the assessment as it then stood was too high." We have examined the record and do not find that Mr. Martin was ever sworn as a witness or that he testified before the board. The finding of the court is: "That said resolution was adopted without the taking or hearing of any evidence or testimony whatever as to the value of said property, and no evidence or testimony of any kind. whatever was taken or heard or considered." The finding is supported by the testimony in the record. The judgment and order are affirmed.

Hearing in Bank denied.

[Crim. No. 647. Department Two.-December 29, 1900.] THE PEOPLE, Respondent, v. A. ARLINGTON, Appellant.

CRIMINAL LAW-INSTRUCTIONS-DISTRUST OF FALSE WITNESS.-An instruction "that a witness false in one part of his or her testimony, as the case may be, is to be distrusted in others, and if you find that any witness in this case has willfully testified falsely to any material matter in the case you have a right to entirely disregard and cast aside the testimony of such witness," is correct, and does not unduly amplify the language of subdivision 3 of section 2061 of the Code of Civil Procedure.

ID.-NAMING OF PROSECUTING WITNESS.-It is improper to single out a particular witness and apply to him or her the rule as to the distrust of a false witness; and where a general instruction is given as to such rule, which is applicable to all the witnesses in the case, a requested instruction applying it to the prosecuting witness is properly refused.

TD.-GRAND LARCENY-VALUE OF MONEY STOLEN ESTIMATE IN GOLD

COIN-EXCEPTIONS-APPEAL-ERROR NOT SHOWN-PRESUMPTION.— Upon appeal from a judgment of conviction of grand larceny in stealing two hundred and fourteen dollars in lawful money of the United States, where the only evidence brought up relates to certain exceptions stated, which do not include an exception to the absence of evidence that the property, consisting of two hundred dollars in greenback bills, ten dollars in gold, and four dollars in silver, was worth more than fifty

dollars in gold coin, or to the failure of the court to instruct the jury that its value must be measured in gold coin, error on that subject is not affirmatively shown, and it must be presumed upon appeal that the requisite evidence was supplied.

ID. CONTINUANCE OF PRESUMPTION OF INNOCENCE-IMPORT OF INSTRUCTION. The presumption of the innocence of the accused continues not only during the taking of the testimony, but also during the deliberations of the jury and until they reach a verdict. An instruction that it "abides with him throughout the trial of the case, until the evidence convinces you to the contrary beyond all reasonable doubt," is to be construed as importing that it remains until the jury should reach the conclusion of guilt beyond a reasonable doubt in the determination of their verdict, and not as importing that the presumption ceased to operate before that time.

APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. S. P. Hall, Judge.

The bill of exceptions stated: "For the purpose of this bill of exceptions this was all the evidence offered by the prosecution that bears upon the defendant's exceptions hereinafter to be stated. But other evidence was introduced which with the evidence herein set forth was sufficient to sustain the verdict." Further facts are stated in the opinion of the

court.

Henry C. McPike, and J. E. McElrath, for Appellant. Tirey L. Ford, Attorney General, for Respondent.

THE COURT.-Defendant was charged with the crime of grand larceny and of two prior convictions for the like offense. He was found guilty by the jury, and the court sentenced him to imprisonment in the state prison during his natural life. The appeal is from the judgment and from the order denying defendant's motion for a new trial. There is no brief for respondent. Appellant's points relate exclusively to the instructions of the court.

1. The point first presented arise on the following instruction: "I instruct you, gentlemen of the jury, that a witness false in one part of his or her testimony, as the case may be, is to be distrusted in others. And if you find that any witness in this case has willfully testified falsely to any ma

terial matter in the case, you have a right to entirely disregard and cast aside the testimony of such witness.” The first part of the instruction is in the language of section 2061, subdivision 3, of the Code of Civil Procedure, and is not objected to, but the latter part, in italics, is urged as prejudicial to defendant, because it tended to confuse the jury and prevent them from giving proper consideration to the facts of the case; and besides is erroneous as not embodying any part of the law of this state. Appellant's counsel review at some length the decisions in which this provision of the code has been commented upon, and concludes that much confusion. exists as to its meaning; and the learned counsel insists that the rule was laid down in People v. Paulsell, 115 Cal. 6, to the effect that the language of the statute should be followed without amplification or modification. We do not so understand that case. The trial court had used the phrase "may be distrusted" instead of "is to be distrusted," and is was with reference to this change in phraseology that it was suggested as safer and better to follow the language of the statute. That the trial court may amplify the code rule substantially as was done in the present case was decided in People v. Flynn, 73 Cal. 511; and that it should do so is laid down in People v. Plyler, 121 Cal. 160. The instruction there read as follows: "If you are satisfied that any witness has willfully testified falsely in regard to any one person, or any one particular fact in the case, then you are authorized to distrust his or her testimony in all particulars; that is, you may reject it entirely if you choose to do so, or you may reject it in part, and receive it in part, as you find it contradicted or sustained by other testimony, as you are satisfied of its truth or falsity." See, also, People v. Clark, 84 Cal. 573, where a similar instruction was upheld; and the rule is sustained by what was said with considerable amplification in People v. Sprague, 53 Cal. 491, quoted approvingly in White v. Disher, 67 Cal. 402.

2. The defendant requested and was refused the following instruction: "If you believe that the prosecutrix testified falsely about being in San Francisco on the night of April 14, 1899, she is to be distrusted in other parts of her testimony." The court did not err. The instruction first above

considered applied to all the witnesses in the case, and besides it would have been improper to single out a particular witness and apply to him or to her the rule in question. (Thomas v. Gates, 126 Cal. 1.)

3. The court charged the jury as follows: "Before you can find him [defendant] guilty of grand larceny, you must be satisfied beyond all reasonable doubt that he stole from the prosecuting witness, Minnie M. Smith, of her personal property, money in excess of the value of fifty dollars; but if you find that he stole such money but are not satisfied that the amount thereof exceeded fifty dollars, you can only find him guilty of petit larceny." Section 878 of the Penal Code provides that: "Wherever in this code the character or grade of the offense or its punishment is made to depend upon the value of the property, such value shall be estimated exclusively in United States gold coin." The court elsewhere in its instructions referred to the indictment as charging defendant with having stolen "two hundred and fourteen dollars, of the value of two hundred and fourteen dollars, in lawful money of the United States"; and again reference is made to some of this money as "bills of currency of the United States," or as "greenbacks," or as "fifty-dollar bills," but the court does not tell the jury in estimating the value of these greenbacks or bills that they are to "estimate their value in gold coin of the United States." The evidence was that the money stolen consisted of two fifty-dollar greenbacks, five twenty-dollar greenback bills, a ten-dollar piece of gold, and four dollars and eighty-five cents in various denominations of silver coin. The contention is that there was no testimony offered to show the meaning of the word "greenbacks," or instruction that their value was to be estimated in gold coin.

The bill of exceptions does not bring up all the evidence, and what appears is stated in the bill to bear only "upon the defendant's exceptions hereinafter to be stated." We find no exception on the point now raised, and as the presumption it that there was evidence to meet the requirements of the law it was incumbent on defendant to show affirmatively that there was no such evidence. The question now raised is not necessarily involved by the appeal.