O'Brien

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

*105 There were undoubtedly some errors of law committed at the trial. For instance, the court instructed the jury that the presumption of innocence goes with the defendant “ until the case is finally submitted to you.” This was error. “ The presumption of innocence does not cease upon the submission of the cause to the jury.” (People v. McNamara, 94 Cal. 514 .) It was also error to allow the respondents, when putting in their evidence in chief, to show that the prosecuting witness had certain money on deposit in order to strengthen or bolster her testimony in anticipation of what they supposed appellant’s evidence might be. There were one or two other errors not necessary to mention. Whether any of these errors was of sufficient importance to warrant a reversal we need not determine under the views which we take of the case.

We cannot find in the record sufficient evidence to sustain a conviction of the crime charged. Counsel for the people invoke the rule applicable to conflicting evidence; but the conflicting evidence -was as to facts…