The judgment in this case must be reversed upon the authority of People v. Bush, 68 Cal. 623, decided since the trial of this case in the court below. Anticipating the result, counsel on both sides have asked the court, in the event a new trial should be ordered, to decide whether or not the evidence in the case is sufficient to sustain the verdict. We do not think it proper to do so, for if we should decide that it is, such determination might and probably would be used on the new trial to the prejudice of the defendant.

One other question we are asked to determine, and as that relates to the admission of certain shoes in evidence, it is proper that it should be decided. The crime charged against the defendant is burglary, and the evidence against him circumstantial. There was evidence tending to identify the shoes, and that they were in the house burglarized, and were found in the possession of defendant the next morning some miles from the place where the crime was committed. All this was clearly admissible as tending to connect defendant with the offense.

Judgment and order reversed, and cause remanded for new trial.

McKee, J., Myrick, J., Thornton, J., Sharpstein, J., and McKinstry, J.., concurred.