case would be a plain one. But the publication in both cases was one and the same act. . . . In Regina v. Erlington, 9 Cox C. C. 86, Cokburn, C. J., said: 'It is a fundamental rule of law that out of the same facts a series of charges shall not be preferred.'" Cases are cited to the rule that "the state cannot split up one crime and prosecute it in parts." (See the rule discussed in People v. McDaniels, 137 Cal. 192, [92 Am. St. Rep. 81, 59 L. R. A. 578, 69 Pac. 1006].) An elaborate and illuminating note is found in 92 American State Reports, upon the identity of offenses in a plea of former jeopardy. The note is very full upon the "carving" or "splitting" of offenses. The general rule is there stated: "The instance above given, of the larceny of several articles at one time and place by one act of theft, is one of frequent occurrence. In such a case, by the great weight of authority, there is but one offense. The state may, if it sees fit, prosecute the theft of all the articles at once, or it may select what it wishes and prosecute for the larceny of that part, but it cannot split the single larceny into as many charges as there are articles stolen and make of such charges the basis of successive prosecutions. The second and subsequent prosecutions are, then, for the same offense." It is unnecessary to cite further authority.

At the trial the defendant, in proof of his plea, offered in evidence the transcript and proceedings at the trial when he was acquitted. The court sustained the objection offered by the district attorney that the evidence was irrelevant and immaterial, remarking: "I think the proper evidence is the indictment or information on file." And as to this-the only evidence allowed by the court except the verdict of acquittal-the court said: "It appears on the face of the indictment there are two separate and distinct offenses charged, and the acquittal on the former trial on information No. 323 is not the same offense charged in the information No. 341, and the motion to dismiss the information No. 341 and dismiss the case against the defendant is denied."

Of course, the two informations show two different offenses committed at two different times. The second one was amended purposely to so show. But this would not preclude the defendant from showing as matter of fact that both sums of money alleged to have been embezzled were taken at the same time, or rather, it was the duty of the prosecution to

show that the embezzlement was committed as alleged in the information.

We think it was error to confine defendant in the proof in support of his plea to the face of the information on which he was acquitted. We do not mean to hold that the defendant could not be convicted of embezzling the money received November 3d in payment by Seth and Myrtle Mann of their taxes, if, as a fact, he did appropriate it on that day to his own use. That question does not arise. It is claimed that the money embezzled was shown by a shortage in his accounts at the end of November and that this shortage arose from his having at that time-December 1st-failed to account for both the Hammel and Mann money, and that in both instances the taking was at the same time out of the combined funds received during that month. Whatever the fact was, defendant had a right to show that the taking of the money in both instances was one and the same transaction. In other words, if the money embezzled on December 1st included in part both the Hammel and Mann moneys, the offense could not be split into two charges and he be convicted of both.

As there must be a new trial, we have thought it proper to consider the point raised on the plea of once in jeopardy. Other errors are claimed, but we do not find it necessary to consider them.

The judgment and order are reversed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 25, 1916.

[Civ. No. 2001. Second Appellate District.-September 27, 1916.]

ALVINA VALENCIA, Respondent, v. PHILIPP
MILLIKEN, Appellant.

ACTION FOR RAPE-WEIGHT OF UNCORROBORATED TESTIMONY-QUESTION FOR JURY-APPEAL.-In an action to recover damages for a criminal assault upon a single woman, the weight to be given uncorroborated testimony is a matter solely for the consideration of the jury, unless it is inherently improbable, and its conclusion is conclusive upon the appellate court.

ID. ARGUMENT TO JURY

COMPARISON OF CHILD WITH DEFENDANT LACK OF PREJUDICIAL ERROR.-In such an action a remark made by plaintiff's counsel in his argument to the jury, requesting them to compare the child to which the plaintiff gave birth with the defendant, is not prejudicial, in the absence of anything in the record showing whether or not it bore any resemblance to the defendant, or that the defendant was prejudiced by the remark. ID. PREVIOUS CHASTITY OF PLAINTIFF

EVIDENCE OF DAMAGES-INSTRUCTION LIMITING EVIDENCE-LACK OF PREJUDICE.-The defendant is not prejudiced by the giving of an instruction limiting the purpose of evidence of previous chastity of the plaintiff to the question of damages suffered, where his defense is an alibi, and not that the plaintiff consented to the act.

ID.-COMPENSATORY DAMAGES FOR "ACT COMPLAINED OF"-PROPER INSTRUCTION.-An instruction that compensatory damages should be given in such amount as will fairly compensate the plaintiff for the injury she has received by reason of the “act complained of,” “taking into consideration her physical suffering and disability during pregnancy and in childbirth, if the jury should find the pregnancy was the result of defendant's act, also her mental suffering, shame, and disgrace, and her loss of social standing, and all other harm they find she suffered as the natural result of the wrong," is not an invasion of the right of the jury by telling them that damages should be awarded regardless of whether she gave her consent or not.

APPEAL from a judgment of the Superior Court of Riverside County, and from an order denying a new trial. F. E. Densmore, Judge.

The facts are stated in the opinion of the court.

Miguel Estudillo, for Appellant.

Richard L. North, A. Orfila, and V. Rapp, for Respondent.

SHAW, J.-As appears from the complaint, defendant, on or about December 19, 1911, with force and violence, made an indecent assault upon plaintiff, who at the time was a chaste and virtuous single woman over the age of twenty-one years, and then and there, without her consent, debauched and carnally knew her, as a result of which she became pregnant, and on September 17, 1912, gave birth to a child, to her damage in the sum of twenty-five thousand dollars; all of which allegations were by defendant denied.

The case was tried before a jury, which brought in a verdict in favor of plaintiff in the sum of four thousand dollars. Defendant moved for a new trial upon the ground of insufficiency of the evidence, errors in law occurring at the trial, and irregularities in the proceedings of plaintiff and the attorneys for plaintiff, which motion was overruled. The appeal is from the judgment and an order of court denying defendant's motion for a new trial.

Appellant devotes a large part of his brief in support of his contention that the evidence is insufficient to justify the verdict of the jury. No purpose could be subserved in quoting at length the detailed acts of defendant in accomplishing his purpose, as related by plaintiff. Her statement, if true, clearly shows that she was, on December 19, 1911, against her will, ravished and debauched by defendant, as a result of which she gave birth to a child on September 17, 1912. As declared in criminal cases, the weight to be given testimony in prosecutions for rape, even if uncorroborated, is a matter solely for the consideration of the jury, unless it is inherently improbable (People v. Ah Lung, 2 Cal. App. 278, [83 Pac. 296]; People v. Benson, 6 Cal. 221, [65 Am. Dec. 506]; People v. Hamilton, 46 Cal. 540); and a less stringent rule is applicable here, since it is a civil action, wherein a preponderance of the evidence is all that is required to establish a fact. Not only do we find nothing improbable in plaintiff's story when all the circumstances are considered, but her testimony is strongly corroborated by that of her father and mother, to the effect that defendant did, on the afternoon of the day named, accompanied by plaintiff, leave their house in a buggy for a ride, from which trip he returned with her that evening, when plaintiff immediately, in the presence of defendant, informed her parents of the fact that the defendant had so abused her; that he then admitted the fact, as

stated by plaintiff, and promised the father that he would marry his daughter within two weeks; that the clothing of plaintiff was torn and blood-stained; that the father accompanied by plaintiff visited the isolated place where the latter stated defendant had pulled her from the buggy, and found evidence of the struggle which plaintiff testified she had with defendant in an effort to protect her virtue. Defendant denied in toto the testimony of plaintiff; denied that he made any admissions or had any conversation with the father and mother; denied that he had gone riding with plaintiff or had seen her or her parents at all on the day referred to; and asserted that at the time when the offense is alleged to have been committed he was elsewhere, and a part of the time at the house of his brother, where he remained during the night, in which claim he was corroborated by his brother and one other person. The weight to be given this conflicting evidence was clearly a matter for the determination of the jury, and its conclusion thereon in favor of plaintiff and against the alibi which defendant sought to establish must, so far as this court is concerned, be deemed conclusive. Appellant cites the case of Lind v. Closs, 88 Cal. 6, [25 Pac. 972], to the effect that where in prosecutions for rape the circumstances tend to throw discredit upon the uncorroborated testimony of the prosecuting witness, the court in reviewing such testimony should be liberal in granting a new trial, to the end that justice may be done. For the reasons stated, however, the rule announced in that case is not applicable to the facts in the case at bar.

It appears that the child, nearly a year old at the time, was produced in court, and in addressing the jury plaintiff's attorney said: "I call your attention, gentlemen, to the child in question and ask you to compare it with the defendant." Defendant objected to the use of this language in argument to the jury, on the ground there was no evidence that the child was that of the defendant, and asked the court to instruct the jury to disregard the remarks of counsel. The testimony of plaintiff was that the child to which she gave birth nine months after the alleged act of intercourse with her by defendant was that of the defendant. The record is silent as to whether or not it bore any resemblance to defendant. For aught that appears to the contrary, its lack of resemblance might have constituted strong evidence in his