221 P. 403 | Cal. Ct. App. | 1923
The defendant was accused by the district attorney of Butte County of the crime of grand larceny, in that, on the first day of May, 1923, he did then and there "wrongfully, willfully and feloniously steal, take and carry away one magneto of the value of $90 . . ., the personal property of Cal Jackson," etc. The jury convicted him of the charge so made and he appeals from the judgment of conviction and the order denying his motion for a new trial.
The points urged for a reversal of the judgment and the order appealed from are: That error was committed in the order denying the defendant's motion to set aside the information on the ground that he was not legally committed by a magistrate, "and that no commitment was on file or in the clerk's office at the time the information was filed against the defendant"; that the evidence was insufficient to justify the verdict; that error was committed in the act of the court in refusing to give certain instructions preferred by the defendant.
[1] The motion to set aside the information was properly denied. The showing made on the motion was that the defendant was given a preliminary hearing on the charge stated in the information before the justice of the peace of Oroville township, Butte County, acting as a committing magistrate, on the seventeenth day of May, 1923; that, upon the conclusion of the taking of the depositions, the magistrate made an order committing the accused for trial in the superior court for the crime with which he was charged in the complaint filed with the magistrate; that, on said day, the magistrate entered the order of commitment upon his docket and indorsed the same on the complaint. It was further shown at the hearing of said motion that the depositions were filed by the phonographic reporter who took them, with the clerk of the superior court. It was made to appear, however, that it was not until after the information against the defendant was filed in the superior court that the commitment was either filed with the clerk of said court or even delivered to the sheriff, to whose custody a person held for trial on a felony or a high misdemeanor charge must, together with the commitment, be delivered (Pen. *246
Code, sec.
In People v. Wallace,
In People v. Tarbox,
The contention that the jury was not justified in arriving at and returning a verdict of guilty upon the evidence before them is based upon the proposition that the chief inculpatory testimony introduced against the accused was given by an accomplice of the latter in the crime charged and that said testimony was not corroborated as is required by section
It appears that during the night of the first day of May, 1923, the magneto of a tractor belonging to Calvin Jackson, a farmer living about two miles south of Palermo, in Butte County, was removed and taken away by some party or parties unknown to said Jackson and without his consent. The magneto was of the value, approximately, of $85, according to the testimony of Jackson. The theft was reported to the sheriff of Butte County, who immediately proceeded to investigate the matter and finally, and on the eighth day of May, 1923, armed with a search-warrant, and accompanied by a deputy, went to the rooms occupied by the defendant at 106 Washington Avenue, Oroville, and, after making a search, found the magneto among other articles under a bathtub in one of his rooms. The defendant was at the house at the time the officers called there, but remained in a room adjoining the one in which the sheriff found the magneto while that officer was searching said room. The defendant said nothing and made no explanation to the officers as to how he acquired possession of the stolen article. He was arrested at the time the magneto was found and taken to and confined in the county jail.
At the trial Jackson identified the magneto by the number of the same. He testified that he had had considerable experience in the use of magnetos and that he knew that each magneto bore a different number. A young man by the name of Cowan, who stated that he was twenty years of age, testified that he had known the defendant for some time, having first made his acquaintance in Red Bluff; that late in the afternoon of the first day of May, 1923, he visited the defendant at his rooms at 106 Washington Avenue, in Oroville; that the defendant remarked to him that he (defendant) had been out in the country and had seen the magneto on Jackson's tractor and suggested that "we would *248 go and get it that night"; that he, upon the request of the defendant, accompanied the latter in his automobile during said night to the place on Jackson's farm where the tractor had been left by its owner that day. He stated that when they arrived at the spot where the tractor was standing the defendant told him to get out and secure the magneto and that he got out and proceeded to the tractor and to remove the magneto therefrom; that the moment that he alighted from the automobile the defendant drove on some distance and waited for a few minutes when he returned to where the tractor was, but the witness had not then succeeded in removing the magneto; that the defendant again drove away from where the tractor was and a short while thereafter returned, the witness by that time having removed the magneto; that he passed the magneto over to the defendant, who threw it into the back part of the automobile and they then started on their return to Oroville. Arriving at Oroville, the defendant went to his rooms and therein left the magneto. The witness identified the magneto which was offered in evidence as the one which had been taken by him from the Jackson tractor.
The defendant did not take the witness-stand.
[2] We think that the fact that the defendant had possession of the stolen article within a few days after the commission of the larceny is sufficient corroboration of the testimony of the accomplice to measure up to the requirements of section
[4] The instructions submitted by the defendant which the court refused to read to the jury, and which refusal it is here contended involved prejudicial error, were based upon section
The judgment and the order are affirmed.
Plummer, J., and Finch, P. J., concurred.