Knutte

Respondent was tried for the offense of obtaining money and property by false pretenses. At the conclusion of the evidence in chief for the prosecution the court advised the jury to acquit, for the reason that in the judgment of the court the case had not been established; and the case was then submitted to the jury upon the instructions of the court, without evidence on behalf of defendant, or argument of counsel. The jury, notwithstanding the advice of the court, found the defendant guilty, and thereupon the court of its own motion made an order setting aside the verdict, and granting the defendant a new trial.

From this order the people prosecute this appeal, the sole point made being that the action of the court was an abuse of its discretion.

The case was argued here by both parties upon the assumption that the new trial was granted upon the ground that the evidence was deemed insufficient to sustain the verdict; and while no specific ground is *455 stated in the order of the court, it may bo safely taken, from the court’s action in advising the jury to acquit, that this assumption of counsel is correct. It has been so repeatedly held here as to become axiomatic that whore…