75 P. 676 | Cal. | 1904
Defendant was convicted of the crime of grand larceny, the information alleging that he stole a horse, the property of J. Suey Lung. *107
1. The principal question arising on the appeal is, that there is a fatal variance between the proofs and the information as to the ownership of the horse. There is evidence that the horse was one of several belonging to a company of Chinese known as Hop Fong Company; that this company was composed of some twenty men and some women, and was divided into twenty-three shares, of which J. Suey Lung owned two, a mercantile company in San Francisco, known as Fook Wah, held three or four shares, others owned one share each, and one or more a half share. The company was a partnership, and leased and cultivated land for a garden. The alleged owner of the stolen horse, J. Suey Lung, was not only one of the partners, but was the "boss man" of the company, or its manager; he made the lease with the owner of the land; employed and discharged the men working there; bought the horses required and sold horses not needed; bought all the supplies required by the company; sold the products of the gardens; deposited the company money in bank, sometimes in his own name and sometimes in the company's name, and likewise drew it out in his own or the company's name; he bought the stolen horse as others in his own name; he kept the horses in the barn of the company, and testified that no one had a right to take the horse in question out of the barn without his consent, and that he could sell the horse, but no one else — none of the other men on the ranch, the partners — could sell the horse, and that he alone could sell the horse. He also testified to the name of some of the partners or shareholders, but did not know the names of all or who they were, and that he was the only manager.
Section
2. Defendant asked for an instruction upon the doctrine of reasonable doubt in the language used in Commonwealth v. Webster, 5 Cush. 295, by Mr. Justice Shaw. The court gave a portion of the instruction, but omitted that part relating to the burden of proof, because elsewhere fully given and repeated. The essential feature of the definition was given, and it was not destroyed or materially weakened by separating from it and giving elsewhere the rule as to the burden of proof.
3. Defendant asked an instruction prefaced with the maxim that "it is better that many guilty persons should escape than one innocent person should suffer," and followed by a statement of the danger of "destroying liberty upon evidence that does not produce conviction," and that "where there is a reasonable doubt as to the defendant's guilt, the jury have a right to consider that innocent men have been convicted." (Citing People v.Travers,
4. An instruction was asked by defendant and refused upon the rule as to the preponderance of the evidence in the course of which the doctrine of reasonable doubt is repeated. The court elsewhere instructed fully on these points.
5. Defendant asked that the jury be instructed to entirely disregard and not consider the robe, neck-halter, and strap found in the possession of defendant at the time of his arrest. There was some evidence concerning these articles, and if it did not appear, as claimed by defendant, that the articles were taken from the vicinity of the alleged crime, or used in its commission, the evidence was before the jury, admitted as relevant, and it was for the jury to judge of its weight. Under the circumstances disclosed, the instruction would have been an invasion of the province of the jury. (Const., art. VI, sec. 19.)
6. Among the circumstances claimed by the prosecution to point to defendant's guilt were certain green stains upon defendant's coat when arrested. Witness Sheriff Sibley, the arresting officer, testified, against defendant's objection, that these stains were "moss stains," made by green moss such as grows on the bark of trees. It is not necessary to state all the facts which made this particular fact relevant, for the objection is not that the circumstance was immaterial, but that "A witness can testify of those facts only which he knows of his own knowledge; that is, which are derived from his own perceptions." (Code Civ. Proc., sec. 1845.) As we read the evidence, that is precisely what the witness testified to.
7. It is urged that the verdict is contrary to the law and the evidence for the reason that the horse "was not proved to have been, at any time, in the possession of the appellant." (CitingPeople v. Hurley,
The judgment and order should be affirmed.
Smith, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Lorigan, J., Henshaw, J.