114 Cal. 107 | Cal. | 1896
Defendant was convicted of grand larceny. Upon this appeal he urges but one ground for .reversal; that is an alleged error of the trial court .in instructing the jury.
The court charged the jury as follows: “If you are not satisfied that he (defendant) is guilty of the offense charged against him, your verdict will be guilty.”
Thereupon the attorney for the defendant asked: “ Does your honor say to the jury that petit larceny is not embraced in the charge?” To which the court answered: “ Precisely.” To this ruling defendant’s counsel entered his exception, and urges it as error upon this appeal.
The jury returned a verdict: “ We, the jury, find the defendant guilty as charged.”
It appeared by the record that defendant "and one James Goggins were charged with having upon the twenty-second day of August, 1895, stolen various articles, principally jewelry, which articles in the aggregate exceeded in value the sum of fifty dollars. Defendant demanded and obtained a separate trial. Upon the trial it was shown that the articles in question were taken from the house of Charles F. Tay. Neither Tay nor his family was living in the house upon August 22d, nor had they been for some time prior thereto. The house was in charge of a Chinese servant. Upon the evening of August 22d, Tay was summoned to his home by a telephone message. Upon his arrival he
The defendant, Comyns, was seen in Mr. Tay’s yard about half-past two o’clock in the afternoon of the evening when Mr. Tay was first notified of his loss.' So far as the evidence shows, he was alone. The Chinese servant testified that he left the house at about a quarter of two o’clock in the afternoon of that day, and upon his return found that the house had been entered and some of the rooms ransacked and rifled. He had last seen any of the missing articles four or five days preceding the discovery of their loss.
Upon the seventh day of September following, defendant was arrested while in company with the said Goggins. Of the property taken there were traced into or through his possession an opera glass, a ring, and a pistol, of an aggregate value far below fifty dollars.
Under this state of the evidence, was the court justified in withholding from the jury the consideration of the lesser offense of petit larceny ?
There are several separate and distinct offenses which are grouped by our code under the common designation of grand larceny. If the property stolen is taken from the person of another, then, without regard to its value, the crime is grand larceny. If the property taken is a horse, cow, mule, goat, sheep, etc., then, wdthout regard, to the value of the animal, the crime is grand larceny. In all other cases the value of the property taken becomes an essential element in determining the offense. When the property taken is of a value exceeding fifty
In this case, conceding the defendant to have committed the crime of larceny, it was essential for the jury to determine the value of the property which he stole. If, as a result of their deliberations, they believed the defendant to have stolen property exceeding in value fifty dollars, their verdict should have been guilty of the offense charged in the information. If, however, they believed that the property stolen by the defendant did not exceed in value the sum of fifty dollars, defendant would not have been entitled to an acquittal at their hands, but, under proper instructions from the court, they should have found him guilty of the lesser offense.
All this is undisputed and indisputable, but it is argued that, because the evidence for the people showed without conflict that the property stolen did exceed in value the sum of fifty dollars, the court was justified in removing from the jury the consideration of the lesser offense of petit larceny embraced within the graver charge. But making, for the purpose of this consideration, the utmost concession which could' be claimed by the people, namely, that the jury was conclusively bound by the evidence to find that the property stolen exceeded in value fifty dollars, and that they could not, in the exercise of their legal discretion in weighing evidence, find it to be of any less value, still no justification is shown for the refusal of the court to instruct upon the lesser offense. If, for example, but a single article had been stolen, a diamond, and the only evidence in the case was that the diamond greatly exceeded in value the sum of fifty dollars, some force would ■ appear in the argument that the defendant, if the jury believed he stole that article, was guilty of the crime of grand larceny, and some reason would appear in justification of the court’s refusal under such circumstances to submit to their consideration the lesser offense. But in this case only a small portion in value of the articles
Under the facts and circumstances of this case, there
It is so ordered.
Temple, J., and McFarland, J., concurred.