that he saw either of the Ball letters written, nor that he was a subscribing witness thereto. On these grounds defendant objected, and it is now urged that the letters were not properly identified. Appellant relies upon the rule as stated in People v. Le Doux, 155 Cal. 535, 550, [102 Pac. 517], "Where not acknowledged, a private writing must be proved in one of three ways: by anyone who saw the writing executed, or by evidence of the genuineness of the handwriting of the maker, or by a subscribing witness. (Code Civ. Proc., sec. 1940.) Such execution must be shown before it is entitled to admission. (Sinclaire v. Wood, 3 Cal. 98.) " Mr. Jones states the rule thus: "Before letters are received ir evidence there must be, as in the case of other documents some proof of their genuineness. This is not proved by the mere fact that the letter is received by mail, when the signature is not proved." (Jones on Evidence, 2d ed., sec. 583.) The evidence shows that Mr. Ball and Mr. Cutting were in frequent, almost daily, communication in connection with the very matters the subject of the letters; sometimes their dif ferences were made known in conversations and sometimes in letters. The evidence showed that the parties acted upon the suggestions in exchanged letters. The genuineness of Mr. Ball's letters was not challenged. He was a witness and in court and could have disclaimed writing them. Cutting no doubt was familiar with Ball's handwriting and his testimony: "That is a letter I received from Mr. Ball on Monday, the 2d day of May, 1910, through the mail" (referring to exhibit 4); again, "that is a letter received by me, received from Mr. Ball, Division Engineer, Santa Fe Railroad" (exhibit 8), we think, under the circumstances, was more than a mere conclusion of the witness. It was stated in Verzan v. McGregor, 23 Cal. 339, 343: "It is often the case that the main question in controversy is the execution and authenticity of the instrument. And the rule is, that if there be no evidence of authenticity, the instrument cannot be read to the jury; but if there be any fact or circumstances tending to prove the authenticity from which it might be presumed, then the instrument is to be read to the jury, and the question, like other matters of fact, is for their decision."

The rule contended for is sound and is not to be disregarded. It would have been a very simple thing to prove the authenticity of these letters not only by Cutting, but by

their writer who was in court and it should have been done. We cannot, however, under all the circumstances, say that the error was so prejudicial as to cause a miscarriage of justice or to justify a reversal.

The judgment is modified by reducing the same from $25,925 and costs to the sum of $22,952 and costs, with direction to compute interest from the date of the original judgment, and as thus modified the judgment and order are affirmed, appellant to recover costs on appeal.

Hart, J., and Ellison, J., pro tem., concurred.

[Crim. No. 358. Third Appellate District.-September 13, 1916.] THE PEOPLE, Respondents, v. FRANK MARTINEZ, Appellant.

CRIMINAL LAW-BURGLARY-QUALIFICATION OF JURORS-IMPLIED BIAS -CONTRADICTORY ANSWERS-PROVINCE OF TRIAL COURT-REVIEW UPON APPEAL.-Where, on the impaneling of a jury for the trial of a defendant charged with burglary, some of the jurors, in reply to questions by defendant's counsel, stated that the accused would be required to produce evidence in his favor to create a reasonable doubt in their mind as to his guilt, but upon being questioned by the district attorney each declared that, if accepted as a juror in the case, he would at all times give the defendant the benefit of the presumption of innocence until his guilt was satisfactorily proved and acquit him if, after a full and fair consideration of the evidence by the light of the court's instructions upon the law, he entertained a reasonable doubt of the defendant's guilt, it was the province of the court, under this state of the record, to determine whether or not such jurors were disqualified for implied bias; and its discretion will not be disturbed on appeal unless it appears that it has been abused. ID.-EVIDENCE-DESCRIPTION OF DEFENDANT AND COMPANION.-In a prosecution for the crime of burglary, there is no error in permitting the people to prove that the defendant and another man, who was shown to have been the defendant's companion, applied for and obtained work together, that the defendant wore a particular kind of cap, that his companion wore a particular kind and size of shoes, that footprints in the snow leading to the burglarized premises corresponded in size with the shoes worn by the two men, and that the remnants of a leather case in which one of the stolen articles was incased were found a few days after the burg'ary in a town toward

which the defendant and his companion were seen hastily going by foot on the night of the crime. ID.-STATEMENTS CONCERNING POSSESSION OF STOLEN PROPERTY-ADMISSIBILITY OF.-Statements made by the defendant when placed under arrest, involving conflicting or inconsistent explanations concerning the possession of one of the stolen articles, are properly admitted in evidence, without a preliminary showing that they were voluntarily made, as they do not involve a confession of guilt.

ID. REASONABLE DOUBT AS TO DEGREE OF CRIME-DUTY OF JURY-INSTRUCTION.-An instruction that "under the information in this case you may, if the evidence warrant it, find the defendant guilty of burglary of the first degree or burglary of the second degree. Should you entertain a reasonable doubt as to which of the two degrees he is guilty, if any, you will give the defendant the benefit of the doubt and acquit him of the higher offense," contains no intimation that the defendant is guilty of the crime of burglary, but obviously means that, if the jury find by the proper degree of proof that the defendant committed the crime charged, but should entertain a reasonable doubt as to which of the degrees of that crime, if any, he was, under the evidence, guilty of, then he would be entitled to the benefit of that doubt and in that case should only be convicted of the lower degree of the crime. ID.-CIRCUMSTANTIAL EVIDENCE-INSTRUCTION.-An instruction explaining that where circumstantial evidence is solely relied upon for the proof of an accused's connection with the commission of a crime, "any fact essential to sustain the hypothesis of guilt and exclude the hypothesis of innocence," and any single fact from which the inference of guilt is to be drawn, "must be proved by evidence which satisfies the minds and conscience of the jury to the same extent that they are required to be satisfied of the facts in an issue in cases where the evidence is direct," is not argumentative, but if it were, the defendant cannot complain of it, where the record shows that it was given and read to the jury at his request.

ID. VERDICT OF CONVICTION-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY or.-On appeal from a judgment of conviction of burglary in the first degree, it cannot be said that the verdict was not justified, where the proof showed the presence of the defendant and his companion in the town where the crime was committed just before such commission, the correspondence in size of the footprints on the surface of the snow leading to and from the burglarized building with the shoes worn by the defendant and his companion, the finding at a place in which direction the accused were seen traveling, of a part of the leather case in which one of the stolen watches was incased when taken from the building, a short time after the burglary, the possession by one of the parties of one of the stolen watches, and the contradictory statements made by the defendant and his companion in attempting to explain such possession.

APPEAL from a judgment of the Superior Court of Plumas County, and from an order denying a new trial. J. O. Moncur, Judge.

The facts are stated in the opinion of the court.

J. D. McLaughlin, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondents.

HART, J.-The defendant was convicted of burglary of the first degree, and appeals from the judgment and the order denying him a new trial.

He claims that his rights were prejudiced by alleged errors of the court in disallowing challenges of certain veniremen for implied bias, in allowing certain testimony to be received into the record, and in the giving of certain instructions. It is charged that he was prejudiced by alleged misconduct of the district attorney and insisted that the evidence does not support the verdict.

The alleged crime was committed at the town of Portola, in Plumas County, between the hours of 8 and 10 o'clock of the evening of February 13, 1916. The building entered was the property of one Arkin. Therein he carried on the retail drug business and also had living-rooms, where he and his family resided. A portion of the store was occupied by one Johnson as a jewelry-store and repair-shop. On the evening named, Arkin and his family attended a movingpicture show located on the opposite side of the street from the said store. He left the store at about 7:30 o'clock in the evening. Johnson had previously left the store and also attended the picture show mentioned. Arkin returned to the store at about fifteen minutes after 9 o'clock on that evening and discovered that a window to one of his living-rooms in the rear of the building had been broken so as to admit of the easy entrance of a person into the building. An investigation following this discovery disclosed that the jewelry case belonging to Johnson had been broken into and a large quantity of watches, lockets, and other like articles had been abstracted therefrom, aggregating in value the sum of five hundred dollars approximately.

The defendant and another man, known as Ed. Martinez and also as Ed. Leal, were, within a few days after the burglary was committed, arrested at Gerlach, Nevada, and on the person of Ed. Martinez was found one of the stolen watches. Other facts developed at the trial will be stated as we consider some of the points, particularly the contention that the verdict is not sufficiently supported.

1. Objections by way of challenges for implied bias were interposed to the legal competency of four of the talesmen to serve as jurors in the case. These were jurors McKenzie, Grother, Guidici, and Ohlsen.

In reply to a question upon voir dire by the attorney for the defendant, McKenzie stated that the accused would be required to "produce evidence in his favor to create a reasonable doubt" in his mind as to the defendant's guilt. Grother and Ohlsen, also replying to questions by defendant's counsel, made similar replies. Guidici affirmatively answered the following question propounded by defendant's attorney: "If there was a reasonable doubt in your mind as to the guilt of the defendant would you presume, or indulge in any possibilities that he would be guilty, to overcome that doubt?" Each of the jurors, however, on being questioned by the district attorney, declared that, if accepted as a juror in the case, he would, in determining the question of the guilt or innocence of the defendant, be governed entirely by the evidence and the law as the court stated it to them; that he would, at all times, give the defendant the benefit of the presumption of innocence until his guilt was satisfactorily proved and acquit him if, after a full and fair consideration. of the evidence by the light of the court's instructions upon the law, he entertained a reasonable doubt of his guilt. "Under this state of the record upon the question whether such jurors possessed such bias as would prevent them from trying the case fairly and impartially, it was for the court to determine that preliminary issue, and in all such cases the court's discretion will not be disturbed on appeal unless it appears that it has been abused." (People v. Conte, 17 Cal. App. 771, 777, [122 Pac. 450].) As was well said in People v. Ryan, 152 Cal. 364, 371, [92 Pac. 856], where the precise proposition under consideration was discussed: "Many persons, competent as jurors, have not given much attention to such subjects, are inexperienced as witnesses, and