Lepkojes

The appellant, who was convicted of arson, appeals from the judgment and from the order denying his motion for a new trial. It is conceded that the fire was of incendiary origin and that the appellant had.an opportunity to commit the crime. Because of the circumstantial character of the evidence, the appellant contends the verdict should have been set aside on the ground that the possibility of the crime having been committed by another was not excluded.

The entire record has been examined with painstaking •care and the conclusion has been reached that this court ought not set aside the verdict. It was disclosed on the part of the appellant that the case had been tried before and that the verdict of guilty - on the first trial had been set aside on motion for a new trial. The same judge presided at the second trial. Like the jurors, he heard and saw the witnesses. [1] Unless he was satisfied that it was sustained by the evidence, it was his duty to set aside the second verdict as he did the first. (People v. Knutte, 111 Cal. 453 , [ 44 Pac. 166 ]; People v. Chew Wing Gow, 120 Cal. 298 , [ 52 Pac. 657 ].) The discretion vested in the trial court to grant a new trial is presumed to…