Carl E. Lindsay, and Carroll Cook, for Appellant.

U. S. Webb, Attorney General, and J. Charles Jones, for Respondent.

KERRIGAN, J.-The defendant was convicted of the crime of arson of the second degree and sentenced to imprisonment in the state prison for the period of ten years. This is an appeal from the judgment and from an order denying defendant's motion for a new trial.

The fire occurred on the third story of a building situated at No. 25 Third street in San Francisco on February 21, 1909, shortly after 1 o'clock in the afternoon. For some time prior to that date one Miss Williams conducted a shorthand and typewriting school in rooms situated upon said third floor, and the defendant was the manager of the school and an instructor under Miss Williams. It is conceded that a portion of the premises was burned and that the fire was of incendiary origin; but the defendant contends that the verdict convicting him of the crime of arson is not sustained by the evidence. We have carefully examined the record with a view to determining this point, and are constrained to hold that the evidence is sufficient.

The theory of the prosecution was that the defendant set fire to the premises in order to enable Miss Williams to collect on her policy of insurance. Evidence was introduced showing a close and strong friendship between defendant and Miss Williams. On the subject of the fire itself two painters, who were at work painting on the third floor of the building, testified that the defendant was there as late as 12:45 P. M., which was shortly before the discovery of the fire, although defendant claimed that he left there an hour earlier. Another witness who knew the defendant testified that when the fire-engines and other fire apparatus were being hurried to the scene of the fire, the defendant was at a point within two blocks of the place and going away from it. The defendant on the other hand testified that at that time and for half an hour prior thereto he was a mile away, taking luncheon with Miss Williams and another woman. When Miss Williams insured the furniture and equipment of the school

originally and again when she increased the amount of her policy, the defendant was present and took an active part in the transactions; yet after the fire he disclaimed to the fire marshal having any knowledge at all on the subject of her insurance, and in an investigation into the origin of the fire, the defendant, in order to account for his whereabouts from the time he claimed to have left the building until he arrived at Larkin and Ellis streets for luncheon, stated that he had an engagement with one W. F. Berrill, and that he walked to the place of appointment at Seventh and Howard streets, and failing to find Berrill that he walked from there to Larkin and Ellis streets. Berrill, however, testified that he had no engagement with the defendant on that day. Other circumstances in the case pointing to the guilt of the defendant are that although it was desired that the painted portions of the third story should dry as quickly as possible, so that a session of school might be held on Tuesday, February 23d, the defendant, against the advice of the painters, ordered the window curtains drawn, the windows left open six inches from the bottom, the inner doors open and the outer doors locked. Immediately after the fire a certain book was found on the defendant's desk, with a leaf turned down at a part of the book entitled, "How to collect insurance."

The evidence is wholly circumstantial, and while it appears from a reading of the entire record that the case is a close one, nevertheless, we think that it is sufficient to sustain the verdict.

Appellant complains of the action of the trial court with regard to certain instructions. The first instruction requested by defendant was marked by the court "Given"; and, although, according to the reporter's transcript of the proceedings, it was not given in the exact language proposed, yet it was given in substance, and the subject matter thereof was fully covered. As to the other instructions criticised, it is sufficient to say that it clearly appears that the jury was fully and fairly instructed by the trial judge on every phase of the law appertaining to the case.

No error was committed in the admission or rejection of evidence.

The verdict finding the defendant guilty was rendered on May 11, 1909. The pronouncement of sentence and judg

ment was continued from time to time until June 14, 1909, and upon that date was again continued until June 22d (being forty-one days from the finding of the verdict), when sentence and judgment were finally pronounced. Section 1191 of the Penal Code, as amended in 1909, provides in part that the court must pronounce judgment within not less than two nor more than five days after the verdict or plea of guilty, but that, for the purpose of hearing and determining a motion for a new trial, this time may be extended not more than ten days, etc. In Rankin v. Superior Court, 157 Cal. 189, [106 Pac. 718], it was held that unless the trial court pronounced its judgment within the five days specified in the section, or within an extension of time therein authorized, the defendant is entitled to a new trial. The verdict of the jury in the present case was rendered before the amendment to section 1191 became law, the amendment being approved April 14, 1909, and becoming effective June 13th following. The continuances prior to the one of June 14th were under the old law and were regular. The judgment was pronounced and the appeal taken after the amendment in question became operative; and it becomes necessary to consider the effect of the last order of continuance, viz., that of June 14, 1909.

This appeal was taken under section 1191 of the Penal Code as amended, and the record does not show that the continuance of June 14th (which was for more than five days) was made for the purpose of hearing and determining a motion for a new trial. Defendant therefore contends that he is entitled to a new trial. But such motion was in fact heard and denied; and in the absence of a showing by the record to the contrary we will presume that the court acted regularly, and that the continuance of June 14th was ordered for the purpose of enabling the court to hear and determine such motion. (People v. Russell, 156 Cal. 450, [105 Pac. 416].) The judgment and order are affirmed.

Hall, J., and Cooper, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 25, 1910, and 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 June 23, 1910.

[Civ. No. 720. First Appellate District.-April 26, 1910.] J. B. MORRELL, Respondent, v. SAN TOMAS DRYING AND PACKING COMPANY, and BALFOUR, GUTHRIE & CO., Appellants.

SALE OF PRUNE CROP-DELIVERY-EXTENDED TIME-TENDER AND RESALE OF REJECTED PART DURING EXTENSION-GENERAL DEMURRER TO COMPLAINT.—A complaint setting forth a written contract for the sale of the whole of a prune crop, to be delivered at an agreed price before a specified date, and an extension of time for performance, and the acceptance of the larger part, and the rejection of a specified number of pounds tendered during such extension, is not subject to a general demurrer on the ground that such rejected portion of the crop was sold upon notice before the expiration of such extended time. ID.-RIGHTS UNDER EXTENDED TIME.-The extension of time pleaded was to give plaintiff further time to perform; and when plaintiff, within that time, offered to perform, the defendants were bound to accept, if in other respects the offer was in accordance with the contract. Upon defendants' refusal to accept the tendered fruit, the plaintiff was justified in reselling the same.

ID. SPECIAL DEMURRER TO COMPLAINT PRICE OR VALUE OF REJECTED PRUNES NOT SHOWN-UNCERTAIN ASCERTAINMENT OF DEFICIENCY. The court erred in overruling a special demurrer to the complaint for ambiguity and uncertainty, in that it does not show the price or value of the rejected prunes, and that it cannot be ascertained with certainty how the alleged deficiency on resale was determined. ID.-STATEMENT OF DAMAGES FOR BREACH NOT SHOWN.-The complaint is further uncertain in that it does not contain or show any damages arising to the plaintiff from defendant's breach of the contract, in rejecting the last tender of the residue of the prunes contracted for.

ID.-VARIATION FROM BASIS PRICE ACCORDING TO SIZE-UNCERTAINTY AS TO SIZE. Where it appears that a basis price per pound was agreed, with an agreed variation therefrom by increase or diminution according to size, the complaint was also uncertain in not showing the size of the rejected prunes, as bearing upon the agreed price or value thereof.

ID.-MEASURE OF DAMAGES FOR BREACH OF BUYER'S AGREEMENT IN CASE OF RESALE UNCERTAINTY AS TO DIFFERENCE.-Under section 3311 of the Civil Code, the detriment caused by the breach of a buyer's agreement to accept and pay for personal property, if it has been resold under section 3049, is "the excess, if any, 13 Cal. App.-20

of the amount due from the buyer over the net proceeds of resale." Though plaintiff probably intended to bring the complaint within this section, yet he has failed to show with certainty, or at all, that the “deficiency" referred to is the difference between the contract price of the rejected prunes and the amount for which they were resold, or to give any data from which such difference can be determined.

ID. INSUFFICIENCY OF EVIDENCE TO SUSTAIN VERDICT FOR LOSS ON RESALE. Where the same uncertainty and insufficiency which appears in the complaint, as to the price or value or size of the rejected prunes, or as to the difference on resale, appears in the evidence, a verdict for the amount of the alleged deficiency on resale of the rejected prunes is unsupported by the evidence. ID. VARIANCE BETWEEN AVERMENT AND PROOF.-Where the complaint alleges that the price of the entire prune crop was $6,004.37, and the evidence shows without conflict that defendant paid plaintiff $6,455.71 for the accepted prunes, it appears that plaintiff has been paid more than was due him for the entire crop. If the allegation of the complaint was a mistake, as suggested by plaintiff, as a witness, he made no effort to correct it. ID.-EVIDENCE-MEANING OF CONTRACT "MORRELL RANCH"-LEASES

BY PLAINTIFF QUANTITY OF PRUNES.-Where the contract called for the entire crop of prunes estimated at 100 tons grown and dried on the orchard known as the "Morrell ranch," evidence was admissible to show that the plaintiff "Morrell" was in fact working under leases three ranches, and that the contract contemplated the whole prune crop grown by "Morrell" under his three leases, which was in fact less than the estimated quantity.

ID.-AMBIGUITY IN CONTRACT ORAL EVIDENCE TO IDENTIFY SUBJECT.— There was such an ambiguity in the contract as to authorize oral evidence to identify the subject of the contract.

ID.-CONFLICTING EVIDENCE-SUFFICIENCY OF QUALITY OF REJECTED PRUNES.-Where the evidence is conflicting as to whether the rejected prunes met the requirements of the contract as to quality, the verdict cannot be interfered with for that reason, notwithstanding the evidence seems to preponderate upon that point against the plaintiff.

ID.-TESTIMONY OF PLAINTIFF RESALE OF PRUNES-ACCEPTANCE BY PURCHASER AFTER EXAMINATION-RESTRICTION OF CROSS-EXAMINATION-ERROR.-After permitting plaintiff to testify that the rejected prunes were bought on resale for the Presto Fruit Company, after examination and acceptance by them, it was error for the court to restrict the right of cross-examination, by disallowing questions as to what was done with the prunes, and whether or not prunes could be used in the process employed by that company that would not be suitable for shipping in boxes.