Daniels

The defendant was convicted of the crime of arson in the second degree, and has appealed from the *249 judgment and from an order denying his motion for a new trial. The only grounds urged for a reversal are that the court erred in giving to the jury portions of two instructions asked by the people, and in its rulings upon the admissibility of certain evidence. It was proved that the defendant was present at the time and place of the fire, but otherwise the evidence against him was entirely circumstantial. The court instructed the jury, in the language of the Penal Code, that arson is the willful and malicious burning of a building with intent to destroy it, and that the offense is divided into two degrees, etc. It next gave an instruction to the effect that, to constitute the offense charged, the intent alleged in the information must be proved, but direct and positive testimony is not necessary to prove it. It may be inferred from the evidence if there are any facts proved which satisfy the jury beyond a reasonable doubt of its existence. Then follows the clause first objected to, in these words: “The court instructs the jury that malice, within the meaning of the law, includes…