The prisoner was convicted of the crime of arson in the second degree, alleged in the indictment to have been committed by him the 4th day of May, 1875.
1. If the evidence concerning the attempt of the prisoner, made on the 18th day of the same month, to fire the house, was admissible at all, it certainly was not error to introduce it before making proof of the corpas delicti alleged in the indictment, for the mere order in which the proofs are to be heard, rests in the discretion of the court trying the cause.
2. Nor have we any doubt that it was competent for the prosecution to prove the attempt of the prisoner, previously made, to set fire to the building. The evidence in that respect bore directly upon the intent of the prisoner in subsequently setting fire to the house—the offense for which the indictment proceeded.
*470It may be true, as claimed for the prisoner in argument, that upon proof of the fact of setting fire to the house on the 24th day of May, the law would have, thereupon, inferred a criminal intent, but this would only show that the introduction of distinct proof of the intent, while perhaps unnecessary, wrought no such injury to the prisoner at the trial, as to entitle him to a reversal of the judgment here.
3. Nor was there any material variance between the indictment and the proof as to the identity of the property which was the subject of the crime; it was alleged in the indictment, and proven at the trial, that it was a one-story wooden house, situated in Pope’s Vally, in Napa County, and the same house which was used and occupied by J. A. Vanarsdale & Co. as a store during the months of July, August and September, 1874. Whether it was the property of Pearce and others, as alleged in the indictment, was, therefore, immaterial—their ownership, if proven, as alleged in the indictment, would only further identify the house burned—which had already been otherwise and sufficiently identified.
4. The only point remaining to be noticed concerns the alleged premature adjournment of the court by the sheriff, in the absence of the judge, on the 20tli of December—the day appointed for pronouncing judgment. It is sufficient to say of this, that it is not made to appear in the record in such a manner as to require examination at our hands. The proceedings in criminal causes are prescribed and regulated by the provisions of the Penal Code (43 Cal. 146.) The fact, if it be such, that in the absence of the judge the sheriff adjourned the court at ten o’clock A.M., instead of waiting until 12 m., is not one of the grounds for a new trial (section 1281). Nor can it be properly incorporated in a bill of exceptions (sections 1170, 1171).
Judgment and order denying a new trial affirmed.
Neither Mr. Justice Niles nor Mr. Justice MoEjbtstby expressed an opinion.