Dewar

The defendant, after conviction on a charge of grand larceny, moved for a new trial. His motion was granted, and from the order made in that behalf the people appeal.

The record is silent as to the grounds upon which the motion for a new trial was made and granted. Respondent, in his brief, says it was based upon each and every ground specified in section 1181 of the Penal Code. In the absence of a showing to the contrary, therefore, we will presume that the motion was so made. One of the grounds specified in that section is that the verdict is contrary to the evidence. Appellant seeks to eliminate that ground from consideration on this appeal by invoking the rule applicable in civil cases that when a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict the order shall so specify; otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground. (Code Civ. Proc., see. 657.) But we find nothing in the provisions of the Penal Code relating to new trials making the rule in civil actions applicable to the procedure in the trial of criminal causes. Prom the transcript of the proceedings on motion for a…