The remaining objection, to-wit, the refusal to give the following instruction: "If the jury are in doubt upon any material fact sought to be proved by the prosecution, or upon the general evidence introduced as to the guilt of the defendant, they should give the defendant the benefit of the doubt and acquit."-involves the question of doubt, which is perhaps of all ideas the most difficult for juries to understand and apply. Section 357 of our criminal practice act (Rev. Laws, 415) provides that "in case of a reasonable doubt whether defendant's guilt be satisfactorily shown, he is entitled to be acquitted." The doubt here provided for is a reasonable one, and courts have for years exercised their ingenuity and learning in endeavoring to frame an instruction which would convey to a jury a practical understanding of a reasonable doubt, with little satisfaction to themselves, and probably little assistance to the juries. In the instruction asked for, however, the court is relieved of any effort to define that perplexing term, but is asked to instruct the jury that in case of any doubt they must acquit. Such an instruction, if good in one case, would be good in all, and would render a conviction for crime almost impossible. The instruction was properly refused.

The first ground upon which the motion in arrest of judgment was asked was that the indictment did not conform to section 234 of the criminal practice act. Section 293 "provides that when the objections mentioned in section 285 of said act appear upon the face of the indictment they can only be taken advantage of by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment, or that the facts do not constitute a public offense, may be taken in arrest of judgment." That the indictment does not substantially conform to section 234 is one of the grounds provided for by section 285, and such an objection should be taken by demurrer, unless section 293 is abrogated by section 426. The two sections are apparently inconsistent, and a judicial construction seems necessary to the intelligent understanding of our criminal practice. These two sections are found in the same act, and, if possible, should be so construed as to give force and effect to both. It is not to be presumed that the legislature intended that any part of a statute should be without its proper meaning, force, and effect. The established rule of construction "is that the intention of the law giver and the meaning of the law are to be discovered and deducted from a view of the whole, and of every part of the statute, taken and compared together." Dwar. St. 188.

In People v. Nash, 1 Idaho, 206, we find the following language in the opinion of the court:

After the verdict the defendant moved in arrest of judgment, and, although several grounds are assigned, we can only consider one of them, because, under section 293, objections which are grounds of demurrer can only be taken advantage of on demurrer, except two, viz., want of jurisdiction of the court, and that the facts do not constitute a public offense. The

defendant did not urge the objection on demurrer * * *that the indictment does not conform to the requirements of sections 233 and 234, criminal practice act, and she is precluded from raising it afterwards, except the objection that the indictment does not show facts constituting a public offense."

This question was fully considered in People v. Shotwell, 27 Cal. 402. In deciding this branch of the case we cannot do better, perhaps, than to adopt the language of the court in that case as adapted to our statute:

"If section 426, which provides that a motion in arrest of judgment may be founded on any of the defects mentioned in section 285, be read without reference to section 293, its language, it may be concluded, is comprehensive enough to embrace the objection made. But we are not at liberty to disregard the 293d section, inasmuch as section 426 may be interpreted as referring only to the causes for arresting the judgment which stand unaffected by section 293."

The alleged defect in the indictment cannot be considered on a motion in arrest of judgment.

The consideration of the remaining objection, to-wit, that the alleged intent must be to commit a felony, involves the construction of the statute upon which the indictment was drawn. The statute reads as follows:

"Every person who shall in the night-time forcibly break and enter, etc., any house whatever, or tent, with intent to commit murder, rape, mayhem, larceny or other felony shall be deemed guilty of burglary." Rev. Laws, 332, $ 59.

It is argued by appellant that from the peculiar arrangement, punctuation, and combination of the words "mayhem, larceny, or other felony," the intention of the legislature must be interpreted to be that there can be no burglary except the breaking is combined with the intent to commit a felony. The objection to this argument is that larceny in this territory is not necessarily a felony, and no amount of punctuation and illogical combination of words can make it such. It is stated that our statute was taken from California, and, under the authority of People v. Murray, 8 Cal. 519, the meaning of the statute has been adjudicated and determined. The decision referred to was made in 1857. In 1858 the legislature of that state, recognizing the validity of the decision, amended the law to conform to it. In 1864 the statute under consideration was enacted by the Idaho legislature. There was no such statute in California at the time, nor had there been for six years prior to the enactment of our statute. It is hardly reasonable to suppose that our legislature would seek a statute in any state with an adjudication which had been regarded for six years as unworthy to be on their own statute book, for the purpose of making it a part of our law. The doctrine that in adopting a statute from one state we adopt the adjudication of it, though true, yet is so limited as to be hardly applicable to the case at bar.

The authority cited by appellant in Campbell v. Quinlin, 3 Scam. 288, reads: "The construction supposed to be adopted is one that the

statute has received by a uniform series of judicial exposition." A single decision, in force but a year, can hardly be called a series of judicial exposition. We are unable to see that the construction insisted upon necessarily follows the statute, nor do we feel assured that the statute was taken from California. It is an exact copy of the Massachusetts law, and is also the common law upon that subject, except that the word "felony" is left out and specific felonies substituted therefor, and larceny added thereto. At common law burglary is defined to be (2 Archib. 263) the crime of breaking, etc., with intent to commit a felony. Under our statute that crime is defined, the act of breaking, etc., with intent to commit robbery, mahem, larceny, or other felony. We have no authority to add the word "grand" or "petit" to the term "larceny." Larceny is general, and includes both grand and petit. In Massachusetts all lerceny was a felony, and their law in the exact words of ours punished all breakings with intent to commit larceny of any grade. We think our legislature intended the same thing. The Massachusetts law punishes burglaries where the intent to commit larceny over $100 with a more severe penalty than where the amount was less than $100. Our legislature might have made a distinction in the punishment between burglaries with intent to commit grand and petit larceny, but they have not yet done so, and the penalty is the same, whatever the amount intended to have been stolen.

The judgment below is affirmed.

MORGAN, C. J., and PRICKETT, J., concurred.

(2 Idaho [Hasb.] 44)

PEOPLE V. Ан Тoo.

Filed February 14, 1884.

In charging a jury the court should give only such instructions as are pertinent to the evidence.

Appeal from Second judicial district, Ada county.

G. W. Adams, E. J. Curtis, and Fremont Wood, for appellant.

T. D. Cahalan, for respondent.

BUCK, J. Ah Too was indicted, tried, convicted, and sentenced at the November term of the district court, 1882, in Ada county, on an indictment for murder in the killing of Ah You. This appeal is taken from the judgment and from the order of the court overruling the motion for a new trial. The errors assigned in the bill of exceptions

and insisted upon in the argument on appeal are-First, the refusal of the court to give a certain instruction at request of the defendant; and, second, the order of the court overruling the motion for a new trial. The instruction asked by defendant and refused by the court is as follows:

"If the evidence introduced by the prosecution to establish the guilt of the defendant be regarded by the jury as circumstantial, and the circumstances by themselves doubtful, the jury must examine and inquire very closely into the adequacy of the motive of the defendant for committing the offense charged."

The exception to the refusal of the court to give this instruction seems based, by a reference in appellant's brief, upon a principle in 3 Grah. & Wat. N. T. 710, where it is stated: "To refuse such instructions as properly arise in the case is error." This proposition is conceded to be good law, and it suggests the question: did the instruction asked for properly arise in the case? While "there is no evidence admissible in a court that does not depend more or less on circumstance for credit,"-Whart. Crim. Ev. (8th Ed.) § 10,-yet it can hardly be claimed that an instruction as to the character and weight of circumstantial evidence should be given in all cases. The court cannot be called upon to charge the jury upon abstract propositions. 3 Grah. & Wat. N. T. 795. An abstract proposition may be correct in principle, and yet so irrelevant to the facts as to have no practical bearing upon the issues tried. To give a jury such an instruction would perplex rather than aid them in finding a verdict. In the case at bar there seems to have been an entire absence of circumstantial evidence. The shooting occured in the day-time, in the midst of several witnesses, and the defendant admitted that the fatal shot came from his revolver, but alleged that the shooting was wholly accidental. The entire evidence was by eye-witness, except the dying declaration of deceased; and those declarations criminating defendant depended entirely upon the credibility of the witness to whom they were said to have been made. We find no element of circumstantial evidence therein. The ruling of the court in refusing this instruction might be sustained on other grounds; but, with a view to correcting the practice of asking rambling and irrelevant instructions, the court sustains the ruling of the court below, upon the ground that the instruction asked for was properly refused because not pertinent to the evidence in the case.

Upon the second branch of the case, to-wit, that the verdict is contrary to the evidence, the court is of the opinion that the objection to the verdict is well taken. In coming to this decision we do not disregard or ignore the principle insisted upon by respondent, te-wit, "where the evidence is conflicting the verdict will not be set aside." Upon an inspection of the evidence we are of the opinion that the

case at bar does not come within the rule. As a result of the conclusion of the court will probably be a new trial in the court below, a discussion of the evidence here would be out of place.

The judgment of the court below is reversed, a new trial ordered, and the case is remanded to the district court, Ada county, Second judicial district, Idaho territory, for further proceedings.

MORGAN, C. J., and PRICKETT, J., concurred.

(2 Idaho [Hasb.] 34)

GRAY, Sheriff, etc., v. CEDERHOLM and others.

Filed February 14, 1884.

Entries in the docket of the probate court that complaint was filed, summons issued and served, demurrer to complaint filed, and the entry of fees for overruling demurrer and entering default, with the following entries: "To entering final judginent, $1.00; certified copy for roll, $1.50; docketing judgment, 50 cents; making judgment roll, 50 cents; sheriff's fees, $5.00; damages, $310.00,❞—do not constitute a judgment for either party, and an appeal from such a judgment to the district court will not lie.

Appeal from Second judicial district, Alturas county.

Kingsbury & McGowan, for appellants.

Angell & Sullivan, for respondents.

MORGAN, C. J. This case was commenced in the probate court of Alturas county, by filing a complaint on the twenty-seventh day of November, A. D. 1882. The next day summons was issued and made returnable December 3, 1882, and was so returned, served on defendants. On the return-day the defendants, by their attorneys, Messrs. Kingsbury & McGowan, appeared specially in said cause, and filed their motion to set aside and quash proceedings for reasons stated therein. This motion was overruled by the probate court. Thereupon a demurrer to plaintiff's complaint was filed by defendants. It does not appear from the transcript of the docket that the said demurrer was either sustained or overruled, the only reference thereto being found in the fee-bill, as follows, to-wit:

To filing demurrer by defendant,

To overruling demurrer, entering default for want of answer,

Then follows various entries in the record of fees for swearing witnesses, after which the following entries were made: