33 P. 846 | Cal. | 1893
The defendant was indicted jointly with his father, whose appeal was recently disposed of here (People
The court required the prosecution to say whether they prosecuted the defendant for a larceny committed by the taking from the Howard place on the 19th, or from the Booth ranch on the 2d. The district attorney said he claimed that the taking was from the Booth ranch on the 2d. If, therefore, it can be said that the defendant was found in possession of the cattle at all, it was not until eighteen days after the taking; and it was only from the circumstances recited that it could be inferred that even then defendant had any possession or control of them, by himself, or jointly with his codefendants. And the evidence was conflicting as to the existence of every one of these circumstances, except the fact that the cattle were found in his father’s corral while he and three others were at the cabin. It is impossible to make out from the statement in what respect the defense claimed that the marks and brands upon the cattle alleged to have been stolen differed from the defendant’s marks and brands. But a great deal of evidence was put in upon the subject upon both sides, much of which consisted in illustrations upon the blackboard, or the examination of sensible objects, the force of which we cannot appreciate. To enable the jury to compare these marks and brands, there was exhibited to them, against the objections of the defense, a hide alleged to have been taken from an animal claimed by the defendant. It was not the hide of an animal alleged to have been stolen, but was exhibited merely to prove what the defendant’s marks and brands were. I think the evidence insufficient to show that the hide was from a steer belonging to the defendant, or that it had not been tampered with, but I pass to what I deem a still plainer error.
After examining the earmarks upon the hide, the court, with the jury, clerk, sheriff, and counsel, went to Young’s
When the defendant was on the stand the following occurred : “Question. What is there about this hide? Answer. This hide? Q. Yes, sir. A. Well, I don’t know whether it is the same bullock or' not. Sam Miller sold a bullock that belonged to me. Mr. Fulkerth: We shall object to that, that it is immaterial what there is about that hide. They can dispute the conversation, if they want to< The Court: That is your hide. Mr. Ferral: What is there to this hide that has been offered in evidence ? So he may have "the right to explain any connection he has with it. The Court: I think that it is too general a question. I will sustain the objection. (The defense reserved an exception.) ” I take it that the remark of the judge, “That is your hide,” was merely intended to tell the witness that it was the hide offered in evidence. The question, with the explanation, which must be taken as a part of it, was not too general. It could hardly be made more specific without being objectionable. The objection made and sustained was that it was immaterial, as the defendant could only deny the conversation in which the defendant was reported to have said that the marks on the animal killed were his. The defense, having taken an exception, pressed the matter no further. What explanation could have been given, we do not know; but many possible ones may be imagined, which would have destroyed the entire value of the evidence, if believed by the jury. That the evidence was most material is evident. The identity of the marks and brands recently made on the cattle with the marks and brand
The exceptions to the instructions are mainly the same as those made in the recent case of People v. Fagan. In that ease the court deemed it unnecessary to consider and determine these questions. It is not more necessary to do so in .this case.
We concur: Vanclief, C.; Searls, C.
the reasons given in the foregoing opinion the judgment and order appealed from are reversed.