81 Cal. 135 | Cal. | 1889
Lead Opinion
The defendant in this case was accused by information of grand larceny. He was convicted as charged. From the judgment rendered upon the verdict of the jury, and an order denying a new trial, he appeals. He contends that an instruction of the court in reference to the appropriation of lost property by the finder thereof is erroneous. The language complained of is as follows: “One who finds lost property under circumstances which give him knowledge or means of
It will be seen at a glance that it was not the legislative intent to create, by the enactment of these provisions of law, any two distinct kinds of larceny, such as the defendant insists upon. The first section defines, larceny generally; the second section declares a rule of evidence which, being fulfilled, constitutes the crime as defined in the first section. It is plain that the charge was correct under the information, and there was evidence in the case, proceeding from the defendant and his witnesses, which tended, in some degree at least, to show that the defendant did find and appropriate a stray steer, not then in the actual possession of Mosher, in whom the title was laid in the information, and that such appropriation was made without first making reasonable and just efforts to find the owner and restore the property to him. The instruction of the court was in
The further claim is made by the appellant that cer-_
The court refused instruction marked “b,” reading thus: “It is also contended by the people that the steer described in the information was sold to Byer Brothers to Goldtree Brothers and Meade; and if you have any reasonable doubt as to whether Byer Brothers did sell said steer to Goldtree Brothers and Meade, you must give the defendant the benefit of that doubt, and find the defendant not guilty.” If this instruction, as it appears in the bill of exceptions, is exactly as asked, it is plain that it is unintelligible. If it is meant to use the word “by” instead of “to” just before the words “Byer Brothers ” where they first occur, then if granted the jury would have been confined to only one theory of the case, and would have been compelled to disregard all other facts in evidence bearing upon the defendant’s possible guilt, and the instruction was properly refused.
The refusal of instruction marked “ c ” in the bill of exceptions, as asked for by the defendant, is claimed to
We see.no error in the record. Judgment and order affirmed.
Dissenting Opinion
I dissent, because in my opinion the evidence is insufficient to support the verdict and judgment.