93 P. 1037 | Cal. Ct. App. | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *165 The defendant was convicted of the crime of grand larceny upon an information wherein it was charged that he did willfully, unlawfully and feloniously take, steal, lead and drive away a certain young cow, to wit, a heifer then and there of the age of about two and one-half years, and then and there the personal property of one T. D. Cheney. Defendant appeals from the judgment and an order of the court denying his motion for a new trial, and in support thereof presents his bill of exceptions.
The subject of the larceny charged was a cow which belonged to defendant. When it was about one year old defendant placed it in a pasture owned by one Blades, agreeing to pay Blades a certain sum per month for its pasturage. A year later, April, 1906, Blades sold and transferred possession of the pasture to T. D. Cheney, who, through Blades, informed defendant, that if the animal remained there he (Cheney) would charge defendant one dollar per month for its pasturage. In September following the defendant called upon Cheney to pay the pasturage bill and get the cow, but owing to a dispute as to the amount due for pasturage and defendant's refusal to pay the sum claimed by Cheney as due himself and Blades, he did not get her. In November, 1906, the cow disappeared from the pasture, and upon defendant being informed of her disappearance, he stated that he would hold Blades and Cheney responsible for her value. Several months later a cow claimed and shown by the prosecution to be the one in dispute was found in a neighboring pasture, where, it was charged, she had been placed by defendant, and from which she was taken by Blades and Cheney to the latter's pasture. Defendant caused the arrest of both *166 Blades and Cheney for taking this cow, claiming that she was not the one in dispute, but another which defendant owned. The charge against Blades and Cheney was dismissed upon the hearing; whereupon defendant was charged with the larceny of the animal as above stated.
1. It is insisted that the court erred in instructing the jury, in substance, that the law recognized a general and special ownership in personal property, and that it might be stolen from one whose ownership was either general or special; that one who had actual possession of cattle received by him for pasture for compensation has a lien thereon for such compensation and is a special owner thereof and may be deemed the owner thereof within the law of larceny, and an information may properly allege him to be the owner thereof; and, in connection therewith, giving the following instruction:
"From these principles it follows that a person having the general ownership of personal property may be guilty of stealing his own property from another who has a special ownership therein; and if a man willfully and feloniously takes his own personal property away from the possession of a special owner thereof, with intent to charge such special owner therewith when such special owner has the right as against him to retain it for some benefit to himself, he is guilty of larceny of such property."
Section
2. There was no error in the instruction given to the jury in relation to the scope, effect and consideration to be given to circumstantial evidence, as follows: "While every fact essential to prove the guilt of the defendant to a moral certainty must be fully proven, the law permits this to be done by circumstantial evidence, and where the evidence is circumstantial, but proves every fact essential to sustain the hypothesis of guilt, and to exclude the hypothesis of innocence, and is inconsistent with any other rational conclusion than that of the guilt of the defendant, the law makes it the duty of the jury to convict the defendant."
The instruction upon this subject must be read in connection with other portions of the charge (People v. Flynn,
3. The court at the request of the prosecution instructed the jury in the language of section
4. The court instructed the jury as follows: "A person who takes in cattle to pasture for compensation, and who has the care and possession of such cattle, has a lien thereon for his compensation for pasturing the same, and is a special owner thereof, and may be deemed to be the owner thereof *169 within the law of larceny, and an information charging the larceny of such cattle may properly allege that he is the owner thereof." Appellant contends that the giving of this. instruction constituted error, for the reason that it conveyed to the jury the idea that if defendant took the animal away he was guilty of stealing her as against Blades. The defendant was not charged with stealing the property of Blades, but was charged with stealing the personal property of one T. D. Cheney. The instruction clearly shows that in order to justify a verdict of guilty the jury must be satisfied that the heifer was, at the time of the taking, in the possession of Cheney.
5. It is next contended that the verdict is contrary to the evidence. In reply to this, it may be said that an examination of the voluminous record shows abundant testimony to justify the conclusion reached by the jury. No good purpose could be subserved by reviewing it. The evidence is conflicting, and while some of the witnesses may have sworn falsely, as claimed by appellant, still the credibility of the witnesses and the weight to be given their testimony are matters, in the first instance, for the consideration of the jury, and, in the second, for the trial judge upon hearing the motion for new trial.
6. The witness Blades was asked the following question by the prosecution: "Were you and Mr. Cheney placed under arrest for stealing this calf you have been referring to, that you took into town at that time?" The court overruled defendant's objection to the same, and this ruling is assigned as error. The question was proper as tending to elicit evidence of the intent of defendant in taking the heifer from the pasture of Cheney. It was necessary, under the theory of the prosecution, to prove that he took her with the intent to charge Cheney with her value. He had stated that he would hold Blades and Cheney responsible for her loss. This question, and the admission of the evidence in the proceedings had before the justice of the peace wherein Blades and Cheney had been arrested for taking the heifer from the pasture wherein it was claimed defendant had placed her, were proper and legitimate for the purpose of showing the wrongful intent with which defendant deprived Cheney of the possession of her. The evidence was admissible upon the same ground that evidence of a civil suit instituted by defendant against them for her value would be admissible. *170
We are unable to find any prejudicial error in the record.
The judgment and order are affirmed.
Allen, P. J., and Taggart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 17, 1908.