People v. Armstrong

114 Cal. 570 | Cal. | 1896

Britt, C.

1. On the night of July 25,1895, a horse, two bridles, and a saddle were stolen from the premises of the brothers Sisler in Tulare county. Defendant was convicted of the theft of the horse under an information in which the animal was described as the “ property of George P. Sisler and Sam Sisler.” The evidence showed that Samuel was the full given name of the person called Sam Sisler in the information, though he was commonly known by the latter designation in the community where he lived. Appellant contends that here was a case of fatal variance between allegation and proof. The objection is untenable. (People v. Leong Quong, 60 Cal. 107; People v. Smith, 112 Cal. 333.)

2. Testimony inculpatory of defendant was given at the trial by one Barlow, who confessedly was an accomplice in the offense charged. The court instructed the jury, in the language of section 1111 of the Penal Code, that a conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself tends to connect the defendant with the commission of the offense, etc. Among other instructions it also gave the following: “ If you are satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged in the information, it will be your duty to return a verdict to that effect.” Appellant argues that the jury might have inferred from this instruction that they could be satisfied of defendant’s guilt by the testimony of Barlow alone. But the court had informed them that evidence corroborative of that of the accomplice was indispensable to conviction, and it must be assumed that this caution was held in mind when the jury came to consider whether defendant was guilty beyond a reasonable doubt. The charge was to be taken as a whole, and it was not necessary that each paragraph should contain all the conditions and limitations expressed in the others' (People v. Morine, 61 Cal. 367, and cases cited; People v. Leonard, 106 Cal. 302, 314.)

3. It is further contended that there was no evidence corroborative of Barlow and tending to connect defendant with the commission of the offense. It appeared that defendant and Barlow were two of a trio of intimates, the third being one Morgan. According to defendant’s own statements and admissions at the trial, Barlow and Morgan “ got the horse ” in the nighttime—in what manner defendant claimed not to know —while he waited for them at an appointed meeting place; he recognized the horse as belonging to Sisler; the three surreptitiously fled together from the vicinity of the larceny, and by a most circuitous route, covering seven or eight hundred miles, reached the county of Madera, the horse—ridden, it seems, by Morgan—being taken with the party. There was further evidence, in- ■ dependent of that of Barlow, that defendant next went north to Yolo county, where he was arrested on the present charge, having then in his possession one of the bridles which was stolen with the horse. He expressed astonishment at being overtaken after the efforts he had made to evade pursuit, and declared that if he had not been surprised he would have resisted capture even to the killing of the arresting officer. We think the facts here stated tended strongly to corroborate the testimony of Barlow to the effect that the horse was stolen as the result of a conspiracy for that purpose between himself, Morgan, and defendant; in which case it was not important whether defendant or Barlow—as the latter claimed—was the person who tarried at the common rendezvous while the other conspirators-led the animal from its owners’ corral. True, there was evidence to show that before the theft of the horse the defendant was, as he put it, “ taking precautions to avoid running into an officer,” being apprehensive of arrest for some breach of the peace, and his flight might have been ascribed to such apprehension; but this was a circumstance for the jury; they were not bound to attribute the consciousness of guilt indicated by flight to one disposing cause rather than the other. The evidence warranted the verdict. (See People v. Cleveland, 49 Cal. 578; People v. Rolfe, 61 Cal. 540; People v. Hong Tong, 85 Cal. 171.) The judgment and order denying a new trial should be affirmed.

Searls, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.

McFarland, J., Henshaw, J., Temple, J.