again, in another instruction, "It is necessary that insanity, in order to be a defense, it must be clearly proved," etc. How else could the jury have understood the instruction that insanity may be established by a preponderance of the evidence than that this preponderance must be "satisfactorily established" and "clearly proved?"

In the case of Beach v. Clark, 51 Conn. 200, the action was on a promissory note on which defendant was indorser as an accommodation to plaintiff, and as security therefor he held certain personal property conveyed to him by plaintiff. The trial court instructed the jury that "if the defendant held the property in question as collateral security, the burden of proof is on him to clearly prove his authority to sell." This was held error, the supreme court of errors saying: "The use of that word [clearly] required the defendant to assume a heavier burden than the law imposed upon him. The law only required him to prove by a preponderance of proof the material fact on which he relied. The charge required him to do more than that: to prove it clearly, without uncertainty, free from doubt or question. It required him to prove it with substantially the same amount of proof that is required to substantiate a criminal charge; and that is not the law. . . . For this reason there must be a new trial."

In Hall v. Wolf, 61 Iowa, 559, [16 N. W. 710], the action related to the sale of certain personal property. The instruction given was that the sale "should be clearly and fairly proven." Said the court: "Clearly and fairly proven' imports more than a mere preponderance of evidence. In the case of West v. Druff, 55 Iowa, 335, [7 N. W. 636], an instruction was held to be erroneous which required 'clear and satisfactory evidence' to satisfy the jury of an issuable fact. That instrument [instruction?] cannot be distinguished from the one now under consideration."

In French v. Day, 89 Me. 441, [36 Atl. 909], the action was trespass and the court instructed the jury: . . . It is incumbent on the defendants to show, by a clear preponderance of the evidence and by convincing proof, their right to do it in order to prevent a verdict against them." In discussing the instruction, the court said: ""Preponderance' means to outweigh; to weigh more. A 'clear preponderance' may mean that which may be seen, is discernible, and may be appreciated and understood. In this sense, the expression

might be unobjectionable; but it may convey the idea, under emphasis, of certainty, beyond doubt, and very likely would do so to the common mind. At any rate, the expression is equivocal and mischievous. "Convincing proof' may be said to mean that degree of certainty required to sustain a given postulate. But that view assumes that the hearer knows the rule that governs such case, which jurors are not supposed to know, but of which they should be informed. The two expressions, coupled, must have conveyed to the jury an erroneous basis for their verdict. Exceptions sustained."

In McEvony v. Rowland, 43 Neb. 97, [61 N. W. 124], the instruction required that the transaction "must be clearly established." The court said that the party "is not required to satisfy the jury in such a case, beyond question, that the sale is an honest one. A preponderance of the evidence is all that is required (citing Stevens v. Carson, 30 Neb. 544, [9 L. R. A. 523, 46 N. W. 655]). The word 'clearly' means without uncertainty."

Some of the qualifying terms which have been held to import a higher degree of proof than is meant by a preponderance of evidence are stated in 17 Cyc., pages 763, 764, namely: "an abiding conviction," a "clear conviction," "convinces," "clearly," "fully," "clearly and satisfactorily," etc.

The rule in some other jurisdictions is not the same as our supreme court in an early day declared it. But where the rule has been followed that the defense of insanity may be established by a preponderance of the evidence, the appellate courts have held that no higher degree of proof should be required, and that it is error to charge the jury by language importing any higher degree of evidence to be necessary to establish such defense.

The attorney-general cites People v. Hoin, 62 Cal. 120, [45 Am. Rep. 651], as an instance where the supreme court inferentially approved of the rule that this defense must be clearly proved. In that case the quotation from the opinion of Chief Justice Tindall was used to illustrate what constituted insanity such as would be accepted as a defense and not the character of proof necessary to establish it. This will at once be seen by reading the instruction which was under discussion. The court was composed of the same members when the case cited was before the court as when

the case of People v. Wreden was decided, and it is not to be supposed that if the court had changed its opinion upon so important a rule, it would have failed to mention its decision in the Wreden case. Whatever may be found in decisions, the rule is firmly established that the defense of insanity may be established by a preponderance of the evidence merely, and that being the rule, trial courts are not allowed to qualify it by requiring a higher degree of proof.

In the instant case nothing appears in the record to lead to a suspicion that the plea of insanity was a subterfuge, and put forward as a means of escaping punishment. Expert and nonexpert testimony was introduced for and against this defense, sufficient in quantity and forcefulness to have prevented the reviewing court, under the settled rule, from interfering with the verdict whichever way the jury may have decided the issue.

It is contended by the attorney-general that the trial court having so clearly instructed the jury that the defense of insanity may be established by a preponderance of the evidence, the jury could not have been misled by the instruction to which complaint is made. The same contention was urged in People v. Miller, 171 Cal. 649, [154 Pac. 468], where "the jury," as the supreme court points out, "were explicitly and correctly instructed that it was not necessary for defendant to show his insanity beyond all reasonable doubt, but only by a preponderance of evidence, as in civil cases . . . that, in other words, insanity may be established by a preponderance of evidence merely." In the Miller case the error arose in the definition which the trial court gave to what constitutes preponderance of evidence. In the present case, the error arose from the fact that the learned trial court in three or four different instructions on the subject instructed the jury that the defense must be "clearly proved," "clearly established," "satisfactorily established," and these expressions were so closely related to the instructions as to the preponderance of evidence being sufficient that we do not feel at liberty to say the jury were not influenced by them.

Whether the judgment should be affirmed notwithstanding such error, under the provision of section 412, article VI, of the constitution, as was said in the Miller case: "We are satisfied that the evidence was of such a nature that such a conclusion may not fairly be reached." We do not wish to be

understood as holding that there was not sufficient evidence to warrant the verdict or that the insanity of the defendant was not shown by a preponderance of the evidence. What we mean to say is that upon this issue the record discloses a condition of facts presented by the defendant from which, under the rule of preponderance of the evidence, the jury might reasonably have found in favor of the theory of insanity.

3. A plea of once in jeopardy was interposed and defendant claims that upon the evidence he was entitled to a ver dict of acquittal. It appeared that defendant was put upon his trial for having embezzled certain funds from the county paid to defendant as tax collector by Carrie M. Hammel, such embezzlement having been committed on the first day of December, 1913. Upon this charge defendant was acquitted. Thereafter a complaint was filed in the justice's court charging him with the embezzlement of certain funds on the first day of December, 1913, paid in to him as tax collector by Seth Mann and Myrtle Mann. On his arraignment, after having been held to answer, he pleaded former acquittal. Later and when he was brought to trial, by leave of court, the district attorney amended the information by changing the date of the alleged embezzlement to November 1, 1913. The trial resulted in a disagreement of the jury, and upon his retrial defendant was convicted and from that conviction the present appeal is taken. It appeared that defendant received a check for the amount alleged to have been embezzled on October 29, 1913, and that the check was cashed on November 3, 1913. It also appeared that defendant made his verified return in due form of all moneys received by him as such tax collector from October 1 to November 1, 1913. The claim of defendant is that the money received from this check, on November 3, 1913, was not due to the county until after his settlement with the treasurer on the first day of December, 1913, and hence falls within the same time as the charge upon which he was tried and acquitted, that is, of having on December 1, 1913, embezzled certain moneys paid in to him as tax collector by Carrie M. Hammel. Section 3753 of the Political Code requires the tax collector, on the first Monday in each month to "settle with the auditor for all moneys collected for the state or county, and pay the same to the county treasurer, and on the same day must de

81 Cal. App.-34

liver to and file in the office of the auditor a statement, under oath, showing: 1. An account of all his transactions and receipts since his last settlement; 2. That all money collected by him as tax collector has been paid."

The charge is that defendant embezzled certain money on November 1st, whereas the evidence was that the money alleged to have been embezzled was the proceeds of a check which, while it was received October 29th, was not cashed until November 3d, and the proceeds became part of the funds for which defendant was to account at the end of the latter month. It is contended that having been embraced in his return for November, this money was included in the return of the money paid in by Seth Mann and Myrtle Mann for the alleged embezzlement of which he was tried and acquitted; that, hence, the only question is, "Are the two offenses a part of the same criminal act?"

It was held in People v. Meseros, 16 Cal. App. 277, [116 Pac. 679], that "proof of the embezzlement or larceny of checks, in the county of the venue, will not support a charge of embezzlement or larceny of the money therein. The contention that checks are money is without support." (Syllabus.)

Once in jeopardy and former acquittal are favored pleas (12 Cyc. 364), and "the right not to be put in jeopardy the second time is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution." (Black, C. J., in Dinkey v. Commonwealth, 17 Pa. St. 126, [55 Am. Dec. 542].) It seems to be a wellsettled rule that where the offense on trial is a necessary element in, and constitutes an essential part of, another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to a prosecution of the other. In People v. Stephens, 79 Cal. 428, [4 L. R. A. 845, 21 Pac. 856], the prosecution was for libel, and the question was whether there may be as many prosecutions for libel maintained upon a single article published in a single issue of a newspaper as there are false and defamatory statements concerning a single individual in such article. "The second prosecution," said the court, "is for a libel contained in the same article and published in the same issue of the same newspaper as the first. The words alleged to be defamatory are not the same in both informations. If they were, the