Morhar

This is an appeal from a judgment of the superior court of Los Angeles County, and from an order denying a motion for a new trial. The appellant was convicted under two counts; the first of first degree arson, the second of destroying insured property, the crime specified in Penal Code, section 5-18.

The evidence is clearly sufficient to establish the fact that arson of the first degree was committed by someone in the burning of the house. At the time of the fire the house was occupied solely by the defendant and his wife and two young children. The fire occurred in the early morning, between 2 and 3 o’clock. It may be assumed, as was indicated, that the family had been several hours in bed. The house doors were locked. In escaping from the house the occupants closed the doors, which locked them, the locks being spring-locks. This was proved by the firemen, who were obliged to break open the doors. The defendant was found among the persons assembled outside the house. He was barefooted at the time. Later defendant obtained and put on a pair of shoes, and went with officers to the police station. The shoes carried an odor of kerosene. The officers called his attention to this…

I dissent. Particularly am I unable to concur in the conclusion stated in the majority opinion that the jury was uninfluenced by reason of the rulings made by the trial court in the matter of the attempt on the part of defendant to prove the significance to him of several articles intimately connected with his religious belief.

At the outset, it may be well to consider the fact that the evidence directly connecting defendant with the commission of the offense of which he was charged was very weak. As indicating the opinion of the judge of the trial court with reference thereto, it appears that at the conclusion of the ease for the prosecution, after defendant had made a motion that the court advise the jury to acquit the defendant, the judge made several statements to the attorneys representing the respective parties to the controversy, which remarks clearly show that he was extremely loath to submit the case to the jury. Among the expressions by the judge of the trial court are the following:

“The Court: I think I will hear from the other side. It seems to me that all you have here is a suspicion. ... I am free to say that I have a suspicion, but I am bound to instruct the jury…