Flood

The defendant was convicted of the crime of embezzlement, and, before judgment was pronounced upon the verdict, moved for a new trial upon *331 several grounds, one of which was that the verdict was contrary to the evidence. This motion was argued before the court and taken under advisement, and thereafter, on the 7th of July, 1893, the court made the following order:

From this order an appeal was taken by the people, and thereafter a hill of exceptions was settled by the judge before whom the case was tried, which purports to contain the instructions of the court and its rulings during the trial, and all the testimony and evidence offered by either party, or admitted in evidence upon the trial of the cause. In the bill of exceptions is also an opinion of the judge, given by him at the time of making the above order, in which he holds that he committed an error in a certain instruction given by him to the jury; and the argument on behalf of the people upon this appeal is chiefly directed to a discussion of the correctness of this instruction, and the matters to which it refers.

We are not at liberty, however, to assume that the court granted a new trial merely because it was of…