thorities would have made it plain to him, as it seems to us, that we have not, on this point, made a wide, or any, "departure from what has been deemed settled rules of law." As to the other proposition upon which counsel bases his petition for a rehearing, viz. that we have gone contrary to the settled practice of the court, in reversing a finding of fact as to which the evidence is conflicting, we have only to remark that the rule he invokes is not that a finding will be sustained whenever there is any evidence, however slight, tending to prove the fact found, but is more correctly stated as follows: A finding, though against the apparent weight of evidence, will not be disturbed if there is substantial conflict of evidence as to the fact found. In this case we think the conflict is not substantial. Counsel seem to think that because a sheriff's return is, in some cases, conclusive, it is therefore to be regarded as of great weight in the cases in which it is merely prima facie sufficient to establish the facts stated. But the considerations of policy and convenience upon which the rule is founded, that, as between the parties to an action and their privies, the return of a sheriff is conclusive, have no application in a suit against him for neglect of official duty. In such cases his return, although prima facie evidence in his favor, is essentially weak evidence; and when, in the face of positive testimony that subsequent to the making of the return he has distinctly admitted its falsity, he offers neither denial nor explanation of such admissions, the effect of his return as evidence in his favor is completely overcome, and is not sufficient to sustain a finding that the return is true. Rehearing denied. 1. In an action to set aside a conveyance as in fraud of creditors, an allegation in the complaint that the grantor was insolvent when the conveyance was made, and that it was done with intent to defraud creditors, is sufficient, without specifically stating the manner in which the fraud was accomplished, and the conduct and acts in reference to it. 2. In such an action, statements made by the grantor shortly before executing the conveyance, showing his knowledge of his indebtedness, are admissible on the question of his intention in conveying away his property. 3. The fact that one conveys a large portion of his property, without valuable consideration, to his wife, knowing at the time that his debts cannot be paid without recourse to such property, tends strongly to prove that the conveyance was made with intent to defraud creditors. 4. The fact that the wife, on receipt of the deed, promised to pay all her husband's debts, does not preclude a finding that the convey TEMPLE, C. This action was brought under section 1589, Code Civil Proc., to recover for the estate property conveyed by the deceased, on the ground that the conveyance was made to defraud creditors. Defendant appeals from the judgment and an order refusing her a new trial. The case has been here before. See 89 Cal. 351, 26 Pac. 879. Since the first appeal the complaint was amended by adding an averment to the effect that the conveyance was made with the intent to defraud creditors. The complaint now avers facts showing the due appointment of the plaintiff as administrator; his qualification as such; that deceased was indebted in the sum of about $5,000, for which amount claims have been presented to plaintiff, as administrator, and which have been duly allowed. The assets in the hands of plaintiff, and their value, are stated, showing that they are insufficient to pay the claims allowed. The complaint then proceeds to charge: That October 4, 1888, deceased, being ill and contemplating approaching death, conveyed to the defendant, his wife, certain property, specially described in the complaint, and that defendant has since claimed to be the lawful owner thereof. That the conveyance was without any valuable consideration, and that at the time said Scott was indebted for all the liabilities presented against his estate and was insolvent. "That with intent to defraud his creditors, and to prevent the application of the proceeds of his said property to the payment of his just debts and liabilities, he fraudulently conveyed the same to his said wife, the defendant herein; and plaintiff avers upon information and belief that it will require the whole of said property, and the value thereof remaining after the satisfaction of liens existing thereon at the time of said conveyance, to meet and discharge the said allowed claims due and payable out of the funds of said estate." The point is made on demurrer to the amended complaint that it does not sufficiently set out the facts constituting the alleged fraud. It is contended that the manner in which the fraud was accomplished, and all conduct and acts in reference to it, should be specifically stated. I think the facts are stated with sufficient particularity. They are the insolvency of the intestate, and the conveyance with the intent to defraud his creditors. These facts alone are sufficient. The case is not like that where deceit or imposition is charged. Each of these ultimate facts may be proved by a great variety of probative facts, the nature of which are not disclosed by the general statement. In such cases justice requires that further information should be given to enable a defendant to understand the charge made against him. Not so here. In fact, it is difficult to see how the charge can be made more specific. insurance policy, if the amount were paid to the estate, would not pay all his debts. There was evidence tending to show that he knew of his indebtedness, and the presumption is that he knew the condition of his affairs. Whether Mrs. Scott knew the condition of her husband's affairs is immaterial, as she gave no valuable consideration for the property; but I think there was evidence tending to show knowledge on her part. The judgment and order should be affirmed. PER CURIAM. We concur: VANCLIEF, C.; BELCHER, C. For the reasons given in the foregoing opinion, the judgment and order are affirmed. Objection is made to the ruling admitting certain statements alleged to have been made by Scott at the time the deed was executed, and some six weeks prior to that ELLEDGE v. NATIONAL CITY & O. R. CO. time. These statements tended to show that Scott knew of his indebtedness, and hence to throw light upon the question of his intention when he executed the deed. The evidence was properly admitted. It is not necessary to review the action of the court in overruling defendant's motion for nonsuit, for defendant did not rest there, but proceeded to put in further evidence. The question now is, does the evidence sustain the findings? The fact that one conveys a large portion of his property, without a valuable consideration, to his wife, knowing at the time that his debts cannot be paid without recourse to such property, tends strongly to prove that the conveyance was made with intent to defraud creditors. There is nothing in Bull v. Bray, 89 Cal. 294, 26 Pac. 873, opposed to this. On the contrary, this proposition is taken for granted in the opinión in that case. It is there only held that, however clear the evidence may be, the fraudulent intent must be found as a fact, and cannot be deduced as a conclusion of law from the finding that one greatly indebted conveyed a portion or all of his property as a gift. Although such facts, if found, might sufficiently prove fraud, still, under our statute, fraud is itself always a fact to be found by the jury, or the court when sitting without a jury. The fact of fraud was found here, and the finding is sustained by the evidence. We do not know whether the court believed the testimony to the effect that Mrs. Scott promised, on receipt of the deed, that she would see all the debts paid; but, even accepting such statement as a fact, it would still leave room for the finding of a fraudulent intent. It might still have been intended to give her an advantage, in that she could take her own time to pay. This would tend to prove a design to hinder and delay creditors. There was evidence from which the court might justly infer that Scott knew that the (No. 19,167.) (100 Cal. 282) Nov. 27, 1893.) (Supreme Court of California. CRIMINAL LAW-REMARKS OF JUDGE-URGING JURY TO AGREE. In a criminal prosecution, where the jury return into court some time after the case has been submitted to them, and state that there is no prospect for an agreement, it is prejudicial error for the judge to state that, in view of the evidence, he is at a loss to understand why the jury should disagree, since such remark cannot fail to create the impression that in his opinion the evidence required a conviction; and such error is not cured by his afterwards telling them that they are sole judges of all questions of fact, and of the credibility of the witnesses. Department 2. Appeal from superior court, Alameda county; W. E. Greene, Judge. Defendant Kindelberger was convicted of assault with intent to rape, and appeals. Reversed. D. T. Sullivan and W. J. Donovan, for appellant. Atty. Gen. Hart, for the People. DE HAVEN, J. The defendant was found guilty of the crime of assault with intent to commit rape, and was sentenced by the judg ment of the superior court to imprisonment in the state prison for a term of seven years. The appeal here is from the judgment, and is brought to this court upon the judgment roll alone, without any bill of exceptions. Cal.) their The jury retired to deliberate upon verdict at 9 o'clock in the evening, and, not having agreed, the jurors, upon their own request, were brought into court at 10 o'clock in the forenoon of the next day, when the following proceedings took place: "The Court: Well, upon what point do you desire instruction or points? A Juror: By request of the jurymen, I would ask if there could be any other form of verdict in the case? The Court: Is that all? A Juror: That is all, except that we are unable to agree. No prospect of agreeing. The Court: In reply to the latter part of the statement, -that the jury are unable to agree, and that there is no prospect of their agreeing,-the court has this to say: That, in view of the testimony in this case, the court is utterly at a loss to know why twelve honest men Let me have that cannot agree in this case. information, please. In that connection, further, I have this to say: That, in my short experience upon the bench, I have occa sionally been associated with juries where some jurors, having an idea that they are smart men, prominent men, with large heads and big capacity, on going to the jury room, take occasion to express ill-digested and rapid opinions upon the case, and then stick to these opinions, right or wrong, unreasonably refusing to listen to the opinion and arguments of their fellow jurors, and so hang a jury. I have occasions, having something of a personal knowledge of jurors on the jury, taken occasion to caution the jurors against that course, and to say that jurors ought to go into the jury box without prejudice, without fear, without favor, with a desire to arrive at the truth, to sift and digest the testimony carefully and conscientiously, and not stubbornly to express an illdigested opinion, and stick to it. I repeat, gentlemen, that I see no reason on earth why a jury in this case, upon this testimony, cannot agree." on some In thus addressing the jury, the learned judge of the superior court committed an error to the prejudice of the defendant. Nothing can be clearer than that in this charge the judge informed the jury that he had a fixed and definite conviction in regard to the verdict which they ought to return, and that in his opinion the evidence to support such conclusion was so plain and satisfactory that honest and intelligent jurors, who had heard the testimony, ought not to disagree as to its weight and effect; and we think the jury understood, or at least may have understood, from these unguarded remarks, that in the opinion of the judge the defendant was guilty, and that such should be the verdict. When, upon the trial of a defendant, the evidence is clearly insufficient to justify a verdict of guilty, it is the duty of the judge to so inform the jury, and to advise a verdict of acquittal. This power is sometimes exercised by courts, and is one so frequently invoked in the trial of criminal cases that its existence may be regarded as We concur: MCFARLAND, J., FITZGERALD, J. (100 Cal. 370) (No. 21,021.) Nov. 28, 1893.) PEOPLE v. HANDLEY. An information for arson of a dwelling house which specifically describes it by its street number, and alleges that it was occupied by defendant, sufficiently identifies the property, without giving the owner's name; and the statement of such name in the information does not necessitate its proof on the trial, since it is merely an addition to a description which is full and complete without it. Department 2. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge. Martin H. Handley was convicted of arson, and appeals. Affirmed. Robert Ferrall, for appellant. Atty. Gen. Hart, for the People. FITZGERALD, J. The defendant was convicted of the crime of arson in the second degree, and sentenced to imprisonment in the state prison for the term of six years. From the judgment of conviction, and the order denying his motion for a new trial, this appeal is taken. Appellant relies for a reversal on two grounds: First, failure to prove the alleged ownership of the burned building; second, insufficiency of the evidence to sustain the verdict. 66 The house alleged to have been burned by the defendant is described in the information as follows: "A certain inhabited building, situate at number 139 Dolores street, in said city and county of San Francisco, the property of one Ellen Bolton, then and there actually occupied by the said Martin H. Handley," the defendant. It is claimed by appellant that the name of Ellen Bolton, the alleged owner of the building, does not appear, except as stated, anywhere in the record, and that there was no evidence adduced on the trial in support of such allegation of ownership. On this point, Miss Nellie Thompson, a witness for the prosecution, testified as follows: * * My mother owns the premises 139 Dolores street. First saw defendant on 2d March. He wanted to see the house, and asked for the keys. Was with another man. Showed him the house. Said he would take it, and paid $2. Next day paid the balance, and got the keys,-four in all. Said would move in the following day. I was present at the fire, March 6th. The man with Handley was about his size, fair complexion, blonde mustache." The rule with reference to the proof required to support an information or indictment is that every fact or circumstance necessary to constitute the crime charged is material, and must be alleged and proved. But the allegation of a fact or circumstance not legally essential to the charge is mere surplusage, and may be disregarded. There are allegations, however, not necessarily essential, and which may be dispensed with; but, when they are laid in the information or indictment, they become material, and must be proved in all cases, when descriptive of the identity of that which is necessary to the charge. In the case before us, the name of the owner, although alleged, was immaterial, because it was not a necessary part of the description of the crime charged, therefore not necessary to be proved. Omitting the name of Ellen Bolton from the description contained in the information, such description is a sufficient identification of the house which the defendant is charged with burning; and the evidence adduced at the trial tended to show that, at the time of the fire referred to, he occupied it as the tenant of another, who was the owner thereof, and that he paid such owner the rent therefor. It therefore follows that proof of BELCHER, C. The defendant was convicted of the crime of embezzlement, and the judgment was that he be punished by imprisonment in the state prison at Folsom for the term of three years. From this judgment, and an order denying his motion for a new trial, he appeals. The information charges that on the 10th day of August, 1892, the defendant received from one Robert C. Brinkley, as his agent, the sum of $390 in lawful money of the United States, which he was to pay over to one W. E. De Groot for and on account of Brinkley, but that, in violation of the terms and objects of his agency, he did then and there, on the day named, "unlawfully, willfully, fraudulently, corruptly, and felon ously retain, withhold, secrete, embezzle, and convert and appropriate to his own use," out of the $390 so received, the amount and sum of $300, whereby said Brinkley was deprived and defrauded of the said sum by the defendant. The appellant contends that the verdict was not justified by the evidence, and hence that the judgment should be reversed. It was proved that Brinkley and defendant had been acquainted for 25 years. In February, 1892, defendant came to this state, and immediately went to the house of Brinkley, in Los Angeles, and remained there until September following, when he left for San Francisco, where he obtained employment. In May, 1892, Brinkley went east, and was there engaged and traveling about with a theatrical company. During his absence, defendant attended to his financial affairs, paid his bills, etc. Brinkley testi * fied: "During the time I was in the east, Mr. Hill stayed at my house, and transacted my business for me here. He paid my family expenses. I sent the money to my wife, and she turned it over to him." And Mrs. Brinkley testified: "During my husband's absence, he sent me about $100 per month. Sometimes he sent the money to me, and sometimes to Mr. Hill, to pay the family expenses. * When Mr. Hill was at our house as our guest, he was very kind. He took care of the children, when they were sick, and looked after the household expenses. He paid the doctor's bills, the grocer, and he paid the electrician who put in the electric plant in our house. I never handled a cent, unless he gave it to me. As soon as I got the money I indorsed it, and gave it to him." Brinkley was indebted to De Groot on a promissory note which became due August 10th, and was secured by a mortgage on his household furniture. The amount due on the note for principal and interest at its maturity was $390. On July 20th he wrote defendant from Chicago: "By the way, my note to De Groot will be due on the 10th of August, and I have the money to meet it, and will send it to you as soon as I get back to Memphis. But if he will extend the note for three months longer by your paying the interest for three months $90, you had better pay Thiele, Clements, and others, and I will be in a position to meet the note at the time. I don't know whether he will or not, but you had better try him." Again, on August 1st, he wrote defendant from Memphis: "You had better draw on me for the money to pay De Groot, if he won't wait and extend the note. If he will, you can pay the others. Has June got the money to go home on? I will bet she has not, so I will have to pay for her ticket, I suppose. Let me know, but don't push me too hard, as you know Will gets the bulk of the profits from the opera company and theater." On the 10th of August, Brinkley caused a telegram to be sent by a bank in Memphis to a bank in Los Angeles, directing the payment to defendant of $390, and the money was promptly paid. Shortly after receiving the money, defendant paid to De Groot $90, and he (De Groot) agreed to wait for the balance. In October, Brinkley came to San Francisco, and remained there about two weeks. While there, defendant was with him all the time, but nothing was said about the money. He then went to Los Angeles, and there saw De Groot, and was told by him that only $90 had been paid on his note. After two days, he returned to San Francisco, and again met defendant and told him what De Groot said about the payment. Defendant said he had paid the whole debt, and he would go to Los Angeles and prove it. The two then went to Los Angeles, anu met De Groot, and defendant and De Groot contradicted each other, and had a quarrel about the matter. The next day, defendant told Brinkley that he had paid De Groot all the $390, excepting $25, and that if Brinkley would let him have that sum he would go over and pay De Groot, and get a receipt for the whole business. Brinkley gave him the $25, and he went away, but returned shortly, and said De Groot would not accept the money. Brinkley owed Niles Pease $89, and he then handed the defendant $64 more, and told him to go and pay Pease. Defendant went into Pease's store, and, when he came out, said to Brinkley: "Come on home, and I will tell you something." They then got on a cable car, and went home, and Brinkley says: "In my parlor or library, he told me he hadn't paid the money to De Groot. He said he had used the money for other things. He didn't tell me right then what he did with it. He told me later in the day." On cross-examination, Brinkley testified: "A few days before this trial, and after Hill's examining trial, I received * * * a letter, in Hill's handwriting, containing a list of things * ** which it was claimed he paid out money for. never would tell me before how he paid out the De Groot money I sent him. I do not know that he paid for my sister-in-law's ticket when she went east. Mr. Hill was attending to the payment of my family expenses. I didn't know whether he paid out this three hundred dollars for family expenses or not. I don't know what he did with it. ** * The only thing I know about it is that Dr. Thiele was paid, and I didn't know until a few days ago that he was paid. That was $50 that I owed Dr. Thiele. I thought it was strange that he did not present his bill, and I heard that he had been paid, and I went around to see him, and he said that he had received fifty dollars. I didn't know, as a matter of fact, that Mr. Hill ever took a dollar of my three hundred dollars for his own personal purposes. I couldn't tell what he did with it. I asked him, and he said that he spent it. That is all." The defendant, in his own behalf, testified: "With this $390 that I received, * He I went immediately to Mr. De Groot, and paid this $90, this interest, which I was to pay as soon as the money arrived, and Mr. De Groot said it was all right, and he would allow the principal to go on. I went immediately, and paid Dr. Thiele $50, and paid this electrician claim of $17.50, and I paid his sister's expenses back east, which amounted to a hundred and some odd dollars, and some small bills, drug bills, or something like that; and in that way the money was all expended for Mr. Brinkley's household expenses, and I received not a dollar benefit for myself. * * His debts here were very numerous. There was the grocer bill, doctor bill, electrician, and, well, most every kind of a bill that could go to make up household expenses, ranging from $10 up to $125, * * the general expens |