Taggart

The defendant was convicted of the crime of grand larceny, and appeals from the judgment, and from an order denying his motion for a new trial.

The only error complained of is the following instruction to the jury: “Where the evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant but inconsistent with any other rational conclusion, the law malees it the duty of, the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses woidd have been.”

It is said by the appellant’s attorneys that this instruction was first given in People v. Cronin, 34 Cal. 202 , and that it has been approved in some later cases cited by them. But the instruction is taken, not from the instructions in People v. Cronin , but from the opinion of the court on page 202; and in looking over the cases citing this case, as given in Palm’s Citations, we have not been able to find any in which this instruction was involved, except the eases of People v. Dole, 122 Cal. 486 , [ 68 Am. St. Rep. 511 , 55 Pac. 581 ],—where it is held to be erroneous,—and in People v. Rushing, 130 Cal. 453, 454 , [ 80…