The defendant was convicted of the crime of grand larceny, charged to have been committed April 9, 1892, in Tehama county, by feloniously stealing, taking, and carrying away one cow, the property of H. C. Wilson.

The information was filed April 29,1892, and on May 4th the defendant was arraigned, and pleaded not guilty to the charge. On May 9th, by order of court, the trial of the case was set for June 8tli. On the last-named day, on motion of the district attorney, the trial was postponed to a day to be thereafter set. On July 2d counsel for defendant moved the court that he be discharged, on the ground that he had not been tried within sixty days after the filing of the information. The motion was denied, and an exception reserved. On August 27th the case was again set for trial on September 21st. At the time so set the trial was commenced, and on the next day concluded with a verdict of “ guilty *3 of grand larceny as charged in the information.” In due time the defendant moved for a new trial, which was denied, and thereupon'judgment was pronounced that he be punished by imprisonment in the state prison for the term of three years. From this judgment and the order denying his motion for a new trial the defendant appeals.

1. Appellant contends that the judgment should be reversed, because under the provisions of section 1382 of the Penal Code, as construed in People v. Morino, 85 Cal. 515 , he was, on July 2d, entitled to be discharged from further prosecution, and the court had no discretion or right to deny his motion of that date for a discharge.

This position is rested upon the theory that the court had no authority on June 8th to postpone the trial without the consent of the defendant, unless upon affidavit showing good cause therefor, and that no such consent was given or showing made.

The section of the code referred to is as follows:

The bill of exceptions is entirely silent as to the orders postponing the trial and refusing to dismiss the prosecution, and there is nothing in the transcript in regard to those orders, except the record entries made by the clerk of the court below. These entries are as follows:

It will be observed that it does not appear from the first entry that the defendant objected to the continuance, or that it was not granted with his full and free consent. And the rule is that, in the absence of any showing as to what ¿took place when the order was made, the appellate court will presume in support of the action of the court below that the defendant assented to the order. (People v. Swafford, 65 Cal. 223 .) It will also be observed that it does not appear from the second entry that good cause for denying the motion was not shown.

Conceding then, as held in People v. Morino, 85 Cal. 515 , that the burden was upon the prosecution to show good cause for holding the defendant without trial for a longer time than that named in the statute, and that in the absence of such showing the court had no discretion in the matter, but was imperatively required to grant the defendant’s motion, still the rule is settled by decisions of this court, found in nearly every volume of our reports, that on appeal all intendments are in favor of the regularity of the action of the court below, and that error will never be presumed, but must affirmatively appear.

Under this rule it was incumbent upon the defendant, if he claimed error, to set out in his bill of exceptions the facts showing it. As he wholly failed to do this, his first contention cannot be sustained.

2. At the preliminary examination of defendant, one H. F. Wilson was examined as a witness, and his testimony was taken down by a shorthand reporter and *5 thereafter written out in longhand and certified and filed by the reporter, as required by section 869 of the Penal Code. At the trial it was admitted that the said H. F. Wilson was dead, and thereupon the district attorney offered to read in evidence his testimony taken before the committing magistrate. The defendant objected to the testimony being read, “upon the ground that due diligence has not been shown to bring this witness before the court to obtain his evidence in the regular way.” The objection was overruled, and this ruling is complained of as erroneous. The testimony was clearly admissible and the ruling proper. (Penal Code, sec. 686; People v. Gannon, 61 Cal. 476 ; People v. Oiler, 66 Cal. 101 .)

Several other objections were made to the admission of evidence, but we see no material error in any of the rulings. If there was error it was trivial, and those rulings may therefore be passed without special notice.

3. The next ¡mint is that the court erred in refusing to give to the jury two instructions asked by defendant. The instructions refused are in these words:

The law declared in the first instruction referred to was clearly and fully stated in other instructions given at the request of defendant, and it was not error, as has been many times held by this court, to refuse to give an instruction which had been already given in substance. The court is not bound to repeat itself.

The instruction was simply indorsed “refused,” with the name of the judge, and it is further claimed that if the refusal was because the instruction had already been given in substance the ground of the refusal should *6 have been stated. It is true that such a rule was declared in some of the early cases decided by this court, but if a failure to comply with it was error, it was an immaterial one which could not prejudice the defendant and for which the judgment cannot be reversed. (People v. Ramirez, 56 Cal. 533 ; 38 Am. Rep. 73 .)

There was no error in the refusal to give the second instruction referred to. There cannot be two presumptions in a criminal ease. The accused is presumed to be innocent until his guilt is established beyond any reasonable doubt, and the court, in effect, so charged the jury.

4. Finally the point is made that if the defendant was guilty at all, he was guilty of embezzlement and not of larceny, and hence that the judgment should be reversed. This point cannot be sustained. There was evidence sufficient to justify the verdict, and it cannot be disturbed here on the ground named.

It follows that the judgment and order must be affirmed, and it is so ordered.